QUESTIONS  OF   THE  DA  Y.  — XXXVIII. 


THE 

Inter -State   Commerce  Act 

AN  ANALYSIS  OF  ITS  PROVISIONS 


BY 

JOHN  R.  DOS   PASSOS 

OF  THE  NEW  YORK  BAR 
AUTHOR  OF 

THE  LAW  OF  STOCK  BROKERS  AND  STOCK  EXCHANGES,"  ETC. 


:UHI7BRSIT7] 


NEW  YORK  &  LONDON 

G.   P.  PUTNAM'S   SONS 

8i^c  ^nitkcrbothct  ^riss 

1 88  7 


w  6- !  i 


COPYRIGHT  BY 

JOHN  R.  DOS  PASSOS 
1887 


Press  of 

G.  P.  Putnam's  Sons 

New  York 


SYNOPSIS  OF  CONTENTS. 


PAGB 

Introduction  .         .         .         .         .         .         .      xi 


CHAPTER  I. 

History  of  Inter-State  Commerce  Legislation  .       i 
Containing  review  of  decisions  of  Supreme  Court 
of  the  United  States  upon  inter-State  com- 
merce. 

CHAPTER  11. 

To  WHAT   Common   Carriers   the   Inter-State 

Commerce  Act  Applies        ....       9 

First  :  Common  carriers  by  land        ...       9 
Second  :  Common  carriers   partly   by  railroad 

and  partly  by  water     .         .         .         .         .10 

Third :  Terms  "  railroad  "  and  "  transportation  " 

defined        .         .         .         .         .         .         .11 

Fourth  :  Internal  State  commerce  not  affected  .     1 2 

CHAPTER  III. 

Rates,  Charges,  and  Fares  which  Common  Car- 
riers may  Collect       .        .        .        .        .14 
First  :  Power  of  Congress  to  fix  charges  con- 
sidered         15 

Munn  vs.  Illinois,  94  U.  S.,  113,  examined       .     15 


iv  Synopsis  of  Contents. 

PAGB 

Second  :  Meaning  of  "  reasonable  and  just  "     .     17 
In   what  ways  the  carrier's  charges  may  be 

investigated     ......     20 

CHAPTER  IV. 

The  Acts  which  the  Common  Carrier  is  Pro- 
hibited FROM  Doing  by  the  Inter-State 

Commerce  Act 21 

First:  "  Unjust  discrimination "        .         .         .21 
I. — Does  the  Act  regulate  services  rendered 

before  its  passage    .         .         .         .         .22 

II. — ''  Unjust    discrimination,"    how    estab- 
lished      .......     22 

III. — "  Unjust    discrimination  "    a   question 

for  courts  or  Inter-State  Commission       .     23 
IV. — Exceptions  under  second  section  .         .     24 
V. — Remedies  under  second  section       .         .     24 
Second  :  Giving  undue  or  unreasonable  prefer- 
ence, or  subjecting  any  person,  etc.,  to  un- 
due or  unreasonable  prejudice,  prohibited  .     24 
The  different  acts  which  are  unlawful  under 

this  section 25 

Carriers  dealing  with  each  other     .         .         .     26 
To  afford  facilities,  etc.,  to  each  other   .         .     26 
Franchises  and  contracts  abrogated  by  Inter- 
State  Commerce  Act        .         .         .         .27 
Third  :  "  Long-  and   short-haul  "  section  dis- 
cussed        .......     28 

I.  Argument  of  Hon.  Shelby  M.  Cullom  in 

U.  S.  Senate  on  this  section  (?iote^ .         .     33 

II.  Editorial  of  N.  V.  Times,  Jan.   15,   1887, 

on  same  subject  (hoU)     .         .         .         .40 


Synopsis  of  Contents. 


PAGE 


Resume    of    first,    second,    third,    and    fourth 

sections       .......     41 

Fourth  :  Pools  and  division  of  earnings  pro- 
hibited        .......     45 

Fifth  :  Combinations  not  to  make  carriage  of 

freight  continuous,  prohibited     .         .         .46 

Sixth:  Exceptions  from  the  operation  of  the  Act,     47 

CHAPTER  V. 

Duty  of  Common  Carriers  to  Prepare,  Print, 
AND  Publish  Schedules  of  Rates,  Fares, 

AND  Charges 49 

Schedules  of  freight  rates  and  passenger  fares, 

how  to  be  kept    ......     49 

Preparing  schedules  and  contents  thereof  .         .     49 
Advance  in  rates        .         .         .         .         .         '51 

Reduction  in  rates      .         .         .         .         .         -52 

Carrier   not   to  demand,  etc.,    greater    or   less 

compensation  than  published  rates      .         -52 
Filing    schedules,   contracts,    etc.,    with    Com- 
mission       .         .         .         .         .         .         -52 

Publishing  joint  rates,  etc.  .         .         .         -53 

Remedies  against  carrier  for  refusing,  etc.,   to 

file  and  publish  schedules,  etc.  .         .     54 

Comments  on  sixth  section         .         .         .         -55 

CHAPTER  VI. 

Penalties  and  Remedies  for  Violating  Act       .     58 
First  :  Carrier  liable  for  full  amount  of  dam- 
ages and  attorney's  fee  to  party  injured      .     58 


vi  Synopsis  of  Contents. 

PAGE 

Second  :  Remedy  of  party  injured — either  Com- 
mission or  courts         .         .         .         .         -59 

Third  :  Carrier  violating,  etc.,  any  provision  of 
Act  guilty  of  misdemeanor  and  liable  to  fine 
of  $5,000  for  each  offence  .         .         .         .60 

Fourth  :  Each  day's  continuance  of  illegal  pool- 
ing of  freights  a  separate  offence         .         .61 

Fifth :  Carrier  receiving  freight  for  foreign 
country  neglecting  to  keep  schedules,  liable 
to  penalty   .......     61 

Sixth  :  Carrier  failing  to  obey  mandamus,  pun- 
ishable as  for  contempt       .         .         .         .61 

Seventh  :  Failure  to  obey  order  of  Circuit  Court, 

a  contempt  .         .         .         .         .         .61 

Eighth  :  General  penalties  for  disobeying,  etc., 

lawful  orders,  etc.,  of  Commission       .         .61 

Ninth  :    Existing  remedies  by   statute   and    at 

common  law,  preserved       .         .         .         -63 

Comments  upon  preceding  sections    .         .         •63. 
I. — Criminal  remedy  against  carrier        .         .     63 
II. — Civil  remedies  of  party  injured        .         .     64 
III. — Remedies  of  complainants  whether  dam- 
aged or  not      .         .         .        '.         .         '65 

CHAPTER  VII. 

The  Inter-State  Commerce  Commission      .         .     67 
Title  of  Commission  .         .         .         .         '67 

Number  of  Commissioners  and  manner  of  ap- 
pointment .......     67 

Term  of  office    .......     68 

Removal    ........     68- 


Synopsis  of  Contents.  vli 


Political  complexion  and  qualification  of  Com 
missioners  ...... 

Powers  of  Commission       .... 

First :  To  inquire  into  management  of  busi- 
ness, etc.  ..... 

Second  :    To  keep  informed  as    to  method 
etc.,  of  business       .... 

Third  :  Right  of  Commission  to  obtain  full 
and  complete  information 

Fourth  :  Power  to  require  attendance  of  wit 
nesses,  production  of  books,  etc. 

Fifth  :  May  invoke  aid  of  U.  S.  courts  . 
Duty  of  U.  S.  courts  in  premises    . 

Sixth  :  Any  one  of  Commissioners  may  insti 
tute  proceedings,  etc. 

Seventh  :  Commission  may  require  annual  re- 
ports         

Rules  of,  and  practice  before.  Commission 

First :  How  Commission  is  to  conduct  pro- 
ceedings ...... 

Second  :  Majority  to  constitute  quorum 

Third  :   Commission  may  make   and  amend 
general  orders 

Fourth :  Any  party  may  appear  in  person  or 
by  attorney      ..... 

Fifth  :  Votes  and  official  acts  of  Commission 
to  be  recorded         .... 

Sixth  :  Commission  to  have  seal     . 

Seventh  :  Either  Commissioner  may  adminis- 
ter oaths  ..... 
Method  of  procedure  before  Commission  . 
Who  may  make  complaint 


68 
69 

69 

69 

69 

69 
70 
70 

70 

71 

73 

73 
73 

73 

73 

73 
73 

74 
74 
74 


vili  Synopsis  of  Co7itents. 

PAGE 

First  :   Any  person,  etc.,  complaining  of  any- 
thing done,  etc.,  or  omitted,  etc.  .         .     74 
Second  :    Complaint  forwarded  by  Railroad 
Commission  or    Railroad  Commissioner 
of  any  State,  etc.     .         .         .         .         '74 

Third  :  Commission  may  institute  inquiry  of 

its  own  motion         .         .         .         .         -75 

Proceedings,  how  begun      .         .         .         -75 
Contents  of  petition    .         .         .         .         '75 

Answer  of  carrier        .         .         .         .         '75 

Reparation  or  satisfaction  by  carrier  .         .     76 
Trial,  etc.,  by  Commission  .         .         .         -76 
When  complaint  not  to  be  dismissed  .         .     76 
Form  of  report  of  Commission    .         .         .76 
Recording  reports  of  investigation      .         -77 
Decision    of  Commission  and  proceedings 

thereunder  ......     77 

Failure  of  carrier  to  obey  judgment    .         .     79 
Appeal         .......     82 

Petition  to  Circuit  Court  presented  by  Dis- 
trict Attorney,  etc.        .         .         .         .82 

Comments  upon  sections  creating  Commission,     83 
First :  Powers  of  Commission  analyzed.         .     84 
Second  :  Commission's  method  of  investiga- 
tion examined . »       .         .         .         .         >     ^S 

Third  :  Consideration  of  question  of  enforc- 
ing the  judgment  of  Commission     .         .     86 
Fourth  :  Constitutional  questions — 

{a)  Power  of  Congress  to  "  regulate  "  com- 
merce .         .         .         .         .         .         -91 

(b)  Power  of  Congress  to  delegate  its   au- 
thority .         .         .         .         .         .93 


Synopsis  of  Coritents.  ix 

I'AGK 

[c)  Right   to    trial   by  jury  under  seventh 

amendment  to  Constitution  of  U.  S.     .     95 

(^)  Question  of  costs  considered         .         .     97 

{e)  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  an- 
other   .......     98 

(/)  Private  property  cannot  be  taken  for 

public  use  without  compensation  .     99 

CHAPTER  VIII. 

Salary  of  Commissioners,  Principal  Office,  and 
Reports  of  Commission,  and  Miscellane- 
ous Provisions 100 

Salary  of  Commissioners     .....  100 

Secretary  of  Commission    .....  100 

Other  employees         ......  100 

Offices  of  Commission        .....  loi 

Fees  of  witnesses        ......  loi 

Expenses  of  Commission   .....  loi 

Principal  office  of  Commission  ....  loi 

Reports  of  Commission  to  Secretary  of  Interior,  102 

Appropriations  .......  103 

Act  takes  effect  April  5,  1887    ....  103 

APPENDIX. 

Containing  Certified  Copy  of  Inter-State  Com- 
merce Act  in  full 105 


INTRODUCTION. 


PERHAPS  no  measure  that  ever  passed 
Congress  equals  In  importance  the  law 
which  has  now  become  famous  under  the  name 
of  the  Inter-State  Commerce  Act.  It  is  the 
first  attempt  on  the  part  of  the  National  Gov- 
ernment to  regulate,  if  not  to  control,  a  private 
commercial  business  ;  for,  although  the  trans- 
portation of  passengers  and  property  is  regard- 
ed as  one  in  which  the  public  has  an  interest, 
it  Is,  In  Its  main  features,  not  different  from  any- 
other  private  commercial  occupation.  The 
capital  invested  in  such  enterprises  is  generally 
furnished  by  individuals,  and  the  business,  in 
Its  financial  features,  is  conducted  purely  for 
private  gain.  For  the  past  few  years,  however, 
public  attention  has  been  steadily  concentrating 
around  the  subject  of  the  government  of  rail- 
road corporations,  and,  step  by  step,  the  Legis- 
latures of  the  different  States  have  encroached 
upon   the    prerogatives    of    these    bodies,    and 


XI 


xii  Introduction. 

interested  themselves  by  various  means  in  their 
affairs. 

Finally,  by  one  bold  and  single  leap,  the 
Congress  of  the  United  States  has,  through 
the  Inter-State  Commerce  Act,  sought  to  ab- 
solutely direct  all  of  the  business  of  railroad 
transportation  in  the  United  States.  This 
piece  of  legislation,  although  not  new  in 
thought,  as  we  shall  hereafter  see,  is  entirely 
novel  in  the  history  of  the  United  States  Gov- 
ernment ;  and  when  it  passes  through  the 
ordeal  of  the  courts,  and  its  constitutionality  is 
challenged,  it  will  be  found  that  outside  of  some 
disjected  dicta  of  judges,  there  is  no  precedent 
for  it  in  the  decisions  of  the  United  States 
courts. 

What  its  effect  will  be,  assuming  the  perfect 
constitutionality  of  the  Act,  upon  the  prosperity 
or  progress  of  the  country,  and  upon  the  busi- 
ness and  financial  interests  of  the  railroad 
corporations,  no  one  can  foretell ;  but  that  it 
will  be  a  factor  of  the  most  vital  importance, 
in  the  management  of  railroads,  will  be  readily 
conceded.  Whether  the  Act  will  be  injurious 
to  the  financial  condition  of  all  the  railroad 
corporations,  or  favorable  to  some  and  detri-  • 
mental  to  others,  it  is  impossible  to  predict. 


Introdiictiolu  x  i  i  i 

But  this  is  certain  :  So  much  power  is  lodged 
in  the  hands  of  the  Inter-State  Commerce  Com- 
missioners, that  it  lies  mainly  with  those  officials 
to  determine  whether  the  law  will  be  salutary 
or  hurtful,  either  to  the  railroads  or  the  public ; 
because  there  can  be  no  question  that  if  the  Act 
is  broadly  and  wisely  interpreted,  and  prudently 
administered,  by  the  Inter-State  Commerce 
Commissioners,  all  interests  may  be  subserved, 
if  not  benefited. 

This  move  of  the  National  Legislature  is  one 
strongly  towards  the  direction  of  centralization 
of  power  in  the  hands  of  the  Federal  Govern- 
ment. Strangely  enough,  its  chief  promoters 
and  advocates  are  representatives  from  the 
South.  The  next  natural  step  must  be  the 
purchase  and  absolute  control,  by  the  same 
power,  of  all  this  vast  railroad  property. 

The  subjects  involved  in  the  Inter-State 
Commerce  Act  are  so  interesting,  and  the  peo- 
ple of  the  country  are  so  deeply  involved  in 
its  results,  that  no  apology  need  be  made  for 
this  little  treatise,  which  embraces  a  history  of 
the  law,  an  analysis  of  its  different  provisions, 
as  well  as  other  matters  generally  connected 
with  the  subject. 


CHAPTER  I. 

HISTORY     OF     INTER-STATE     COMMERCE     LEGISLA- 
TION. 

ATTEMPTS  to  regulate  the  business  of 
common  carriers,  and  to  prescribe  rates 
of  charges  for  transporting  persons  and  prop- 
erty, and  for  storing  or  handHng  the  latter,  date 
back  at  least  to  1870,  when  the  people  of 
Illinois  incorporated  in  their  constitution  sev- 
eral sections  relative  to  elevators  or  store- 
houses, where  grain  or  other  property  was 
stored  for  a  compensation  ;  and  on  April  25, 
1 87 1,  to  carry  out  the  purposes  of  this  consti- 
tutional provision,  an  act  of  the  General 
Assembly  of  Illinois  was  passed,  which  was 
sustained  as  constitutional  by  the  Supreme 
Court  of  the  United  States.  (Munn  z'.  Illinois, 
94  United  States,  113.) 

In  that  case  the  Court  held  :  ''  That  where 
warehouses  are  situated  and  their  business  is 
carried  on  exclusively  within  a  State,  she  may, 
as  a  matter  of  domestic  concern,  prescribe  reg- 


2  The  Inter- State  Commerce  Act. 

ulatlons  for  them,  notwithstanding  they  are 
used  as  instruments  by  those  engaged  in  inter- 
State,  as  well  as  in  State,  commerce  ;/and,  until 
Congress  acts  in  reference  to  their  inter-State 
relations,  such  regulations  can  be  enforced,  even 
though  they  may  indirectly  operate  upon  com- 
merce beyond  her  immediate  jurisdiction." 

At  the  same  term  of  the  Supreme  Court  of 
the  United  States  (October,  1876),  an  act  of 
the  General  Assembly  of  the  State  of  Iowa, 
entitled  ''  An  act  to  establish  reasonable  max- 
imum rates  of  charges  for  the  transportation  of 
freight  and  passengers  on  the  different  roads 
of  this  State,"  approved  March  23,  1874,  was 
also  sustained  as  constitutional,  and  held  not 
to  be  a  regulation  of  inter-State  commerce. 
(Chicago,  Burlington,  &  Ouincy  R.  R.  Co.  v. 
Iowa,  94  United  States,  155.) 

A  similar  statute  of  Wisconsin,  prescribing 
a  maximum  of  charges,  to  be  made  by  the 
Chicago  &  Northwestern  R.  R.  Co.,  for  trans- 
porting persons  or  property  within  the  State, 
or  taken  up  outside  of  the  State  and  brought 
within  it,  or  taken  up  inside  and  carried  with- 
out, was  also  upheld  as  constitutional.  (Peik 
V.  Chicago  &  Northwestern  R.  R.  Co.,  94 
United  States,  164.) 


TJie  Inter- Stale  Commerce  Act.  3 

The  Supreme  Court  of  the  United  States,  in 
these  cases,  held  that  the  various  States  of  the 
Union  had  the  power  to  pass  laws  limiting  the 
amount  of  charges  by  railroad  companies  for 
fares  and  freights,  and  prescribing  rules  for  the 
operation  of  the  business  of  carriers,  unless  re- 
strained by  some  contract  in  the  charter  of  the 
corporation  ;  and  it  was  further  held  that  the 
States  had  such  right,  even  though  the  income 
of  the  corporations  may  have  been  pledged  as 
security  for  the  payment  of  obligations  incurred 
upon  the  faith  of  the  charter. 

In  reply  to  the  argument  made,  and  forcibly 
pressed  upon  the  Supreme  Court,  that  these 
various  statutes  of  the  States  of  Illinois,  Iowa, 
and  Wisconsin  violated  that  part  of  the  Con- 
stitution of  the  United  States  which  confers 
upon  Congress  power  to  regulate  commerce 
among  the  several  States,  the  Court  in  sub- 
stance answered,  that  until  Congress  acts  in 
reference  to  the  relations  of  common  carriers 
to  inter-State  commerce,  it  was  within  the 
power  of  the  different  States  to  regulate  the 
fares,  etc.,  of  such  common  carriers,  so  far  as 
they  are  of  domestic  concern,  even  though 
such  legislation  might  indirectly  affect  personi^ 
or  thincrs  without  the  State. 


4  The  Inter- State  Commerce  Act, 

The  above  cases  would  seem  to  have  settled 
the  question  in  favor  of  the  rights  of  the 
States  to  prescribe  the  charges,  fares,  etc.,  of 
common  carriers,  operating  or  conducting  their 
business  within  the  States,  even  if  the  conse- 
quences were  to  affect  persons  or  things  outside 
of  the  State. 

But  such  was  not  the  fact ;  for  in  October, 
1886,  the  Supreme  Court  of  the  United  States 
re-examined  the  whole  subject  in  a  controversy 
arising  between  the  Wabash,  St.  Louis,  and 
Pacific  Railway  Company  and  the  State  of  Il- 
linois (118  U.  S.  Rep.,  557).  In  that  case  it 
appeared  that  the  Wabash  Railway  Company 
had  violated  a  statute  of  Illinois,  enacting  that 
if  any  railroad  company  shall,  within  that  State, 
charge  or  receive  for  transporting  passengers 
or  freight  of  the  same  class,  the  same  or  a 
greater  sum  for  any  distance  than  it  does  for  a 
longer  distance,  it  shall  be  liable  to  a  penalty 
for  ttnjust  discrmiination.  The  Wabash  Rail- 
way Company  made  such  discrimination  in 
regard  to  goods  transported  over  the  same  road 
or  roads,  from  Peoria  in  Illinois,  and  from  Gil- 
rrian  in  Illinois,  to  New  York,  charging  more 
for  the  same  class  of  goods  carried  from  Gil- 
man  than  from  Peoria,  the  former  being  eighty- 


The  Iiita'- Stale  Commerce  Act.  5 

six  miles  nearer  to  New  York  than  the  latter, 
this  difference  being  in  the  length  of  the  line 
within  the  State  of  Illinois.  The  Supreme 
Court  of  the  United  States  decided,  through 
Mr.  Justice  Miller,  that  this  statute  of  Illinois 
was  unconstitutional,  as  infrinorinof  the  clause  of 
the  Constitution  of  the  United  States,  divine 
to  Congress  power  to  regulate  commerce  be- 
tween the  States.     The  Court  said  : 

''  It  cannot  be  too  strongly  insisted  upon, 
that  the  right  of  continuous  transportation, 
from  one  end  of  the  country  to  the  other,  is 
essential,  in  modern  times,  to  that  freedom  of 
commerce  from  the  restraints  which  the  State 
might  choose  to  impose  upon  it,  that  the  com- 
merce clause  was  intended  to  secure.  This 
clause,  giving  to  Congress  the  power  to  regu- 
late commerce  amoni^  the  States  and  with  for- 
eign  nations,  as  this  Court  has  said  before,  was 
among  the  most  important  of  the  subjects 
which  prompted  the  formation  of  the  Constitu- 
tion. (Cook  V,  Pennsylvania,  97  U.  S.,  556, 
574;  Brown  v.  Maryland,  12,  Wheat/,  419, 
446.) 

''  And  it  would  be  a  very  feeble  and  almost 
useless  provision,  but  poorly  adapted  to  secure 
the    entire  freedom    of   commerce    among  tlic 


IVE 


6  The  Inter- State  Co7nmerce  Act. 

States,  which  was  deemed  essential  to  a  more 
perfect  union  by  the  framers  of  the  Con- 
stitution, if,  at  every  stage  of  the  transport- 
ation of  goods  and  chattels  through  the 
country,  the  State,  within  whose  limits  a  part 
of  this  transportation  must  be  done,  could 
impose  regulations  concerning  the  price,  com- 
pensation, or  taxation,  or  any  other  restrict- 
ive regulation  interfering  with  and  seriously 
embarrassing  this  commerce.  .  .  .  As  re- 
^  stricted  to  a  transportation  which  begins  and 
ends  within  the  limits  of  the  State,  it  (the 
law  of  Illinois)  may  be  very  just  and  equitable, 
and  it  certainly  is  the  province  of  the  State 
Legislature  to  determine  that  question.  But 
when  it  is  attempted  to  apply  to  transportation 
through  an  entire  series  of  States  a  principle 
of  this  kind,  and  each  pne  of  the  States  shall 
attempt  to  establish  its  own  rates  of  transpor- 
tation, its  own  methods  to  'prevent  discrimina- 
tion in  rates,  or  to  permit  it,  the  deleterious 
influence  upon  the  freedom  o/  commerce  among 
the  States,  upon  the  transit  of  goods  through 
those  States,  cannot  be  overestimated.  TJiat 
this  species  of  regulation  is  one  which  must  be, 
if  established  at  all,  of  a  general  and  national 
character,  and  cannot  be  safely  and  wisely  re- 


The  Inter- State  Commerce  Act.  7 

mtitted  to  local  rules  and  local  regulations,  we 
tlmik  is  clear,  Jroni  what  has  already  been 
said.  And  if  it  be  a  regiclation  of  commerce,  as 
we  think  we  have  demonstrated  it  is,  and  as  the 
Illinois  Court  concedes  it  to  be,  it  vucst  be  of 
that  national  character,  and  the  regulation  can 
only  appropriately  exist  by  general  rttles  and 
principles,  which  dema}id  that  it  should  be  done 
by  the  Congress  of  the  United  States  2inder  the 
commerce  clause  of  the  Constit2ction'' 

This  last  decision  of  the  Supreme  Court  of 
the  United  States  furnishes  the  "  motive  and  the 
cue"  for  the  Inter-State  Commerce  Act,  which 
was  approved  on  the  4th  day  of  February, 
1887,  and  which  was  the  result  of  a  compro- 
mise agreed  on  by  Conference  Committees  of 
the  Senate  and  House  of  Representatives. 

The  power  of  Congress  to  pass  a  measure  of 
this  kind  arises  out  of  the  third  subdivision  of 
Sec.  8,  Art.  I.,  of  the  Constitution  of  the 
United  States,  which  provides  that  it  shall 
have  power  ''  to  regulate  commerce  zuith  for- 
eign nations,  and  among  the  several  States,  and 
with  the  Indian  tribes!' 

The  Supreme  Court  of  the  United  States,  as 
we  have  shown  by  reference  to  the  Wabash 
■case,  held,  that  the  various  States  of  the  Union 


8  The  Inter- State  Commerce  Act. 

had  no  right  to  regulate  the  traffic  and  business, 
of  raihoads  running  through  their  respective 
boundaries  into  other  jurisdictions,  and  that 
such  power  existed  solely  in  the  Congress  of 
the  United  States. 

But  it  must  be  remarked,  that  the  language 
of  Mr.  Justice  Miller,  which  is  quoted  above, 
so  far  as  the  Inter-State  Commerce  Act  is  con- 
cerned, the  provisions  of  which  were  not  before 
the  Court,  should  be  regarded  as  obiter  dictum.y 
and  used  only  in  a  most  general  sense. 

When  the  Act,  therefore,  creating  the  Inter- 
State  Commerce  Commission  comes  before  the 
Supreme  Court  for  interpretation,  it  will  be 
treated  and  reo^arded  as  a  new  and  orlgrinal 
question,  to  be  determined  upon  general  prin- 
ciples, and  without  a  precedent  to  guide  the 
judges  in  their  decision. 

It  is  not  necessary  for  the  purposes  of  this 
work,  indeed  it  woqld  be  fruitless  to  endeavor 
to  attempt,  to  predict  what  the  result  may  be 
when  this  Act  comes  before  the  Federal  courts 
for  interpretation.  Our  purpose  will  be  sub- 
served in  laying  before  the  readers,  indepen- 
dently, and  without  bias,  briefly  and  generally, 
the  main  ?nd  striking  arguments  which  occur 
to  us  in  our  analysis  of  the  different  sections  of 
this  important  law. 


CHAPTER    II. 

TO    WHAT    COMMON    CARRIERS    THE     INTER-STATE 
COMMERCE    ACT    APPLIES. 

THE  first  section  of  the  Inter-State  Com- 
merce Act,  by  the  most  general  and 
comprehensive  language,  undertakes  to  include 
within  its  provisions  two  descriptions  of  car- 
riers. 

Common  Carriers  Wholly  by  Railroad. 

First :  The  Act  applies  to  any  common  car- 
rier or  carriers  engaged  in  the  transportation 
of  passengers  or  property,  wholly  by  railroad, 
from  one  State  or  territory  of  the  United  States, 
or  the  District  of  Columbia,  to  any  other  State 
or  territory  of  the  United  States,  or  the  Dis- 
trict of  Columbia,  or  from  any  place  in  the 
United  States  to  an  adjacent  foreign  countr}^ 
or  from  any  place  in  the  United  States  through 
a  foreign  country  to  any  other  place  in  the 
United  States,  and  also  to  the  transportation 
in  like  manner  of  property  shipped  from  any 

9 


lo  The  Inter- State  Comvterce  Act. 

place  in  the  United  States  to  a  foreign  country 
and  carried  from  such  place  to  a  port  of  trans- 
shipment, or  shipped  from  a  foreign  country  to 
any  place  in  the  United  States  and  carried  to 
such  place  from  a  port  of  entry  either  in  the 
United  States  or  in  an  adjacent  foreign  country. 
(Sec.  I.) 

Cofnmou    Carriers   Partly    by    Railroad   and 
Partly   by    Water. 

Second  :  It  also  applies  to  any  common  car- 
rier or  carriers  engaged  in  the  transportation 
of  passengers  or  property  partly  by  railroad 
and  partly  by  water  when  both  are  used,  under 
(i)  a  common  control,  (2)  inanage7nent,  (3)  or 
arrangement,  for  a  continuous  carriage  or  ship- 
ment from  one  State  or  territory  of  the  United 
States,  or  the  District  of  Columbia,  to  any  other 
State  or  territory  of  the  United  States,  or  the 
District  of  Columbia,  or  from  any  place  in  the 
United  States  to  an  adjacent  foreign  country,  or. 
from  any  place  in  the  United  States  through  a 
foreign  country  to  any  other  place  in  the 
United  States,  and  also  to  the  transportation, 
in  like  manner  of  property  shipped  from  any 
place  in  the  United  States  to  a  foreign  country 
and  carried  from  such  place  to  a  port  of  trans- 


The  Inter- State  Commerce  Act.  1 1 

shipment,  or  shipped  from  a  foreign  country  to 
any  place  in  the  United  States  and  carried  to 
such  place  from  a  port  of  entry  either  in  the 
United  States  or  in  an  adjacent  foreign  country. 
(Sec.  I.) 

Term   ''Railroad''  Defined. 

Third:  The  term  ''railroad,"  as  used  in  this 
first  section,  is  also  defined  to  include  all 
bridges  and  ferries  used  or  operated  in  con- 
nection with  any  railroad,  and  also  all  the  road 
in  use  by  any  corporation  operating  a  railroad, 
whether  owned  or  operated  under  a  contract, 
agreement,  or  lease  ;  and  the  term  "■  transporta- 
tion" shall  include  all  instrumentalit]es~of~ship= 
ment  or-ea^riage. (Seci.)  

It  will  thus  be  seen,  by  a  perusal  of  the  first 
section  of  the  law,  that  its  language  embraces 
all  common  carriers  of  passengers  or  property, 
doing  business  with  more  than  one  State, 
whether  such  carriers  are  natural  persons,  or 
corporations  ;  whether  they  are  aliens,  or  citi- 
zens, or  foreign  or  domestic  corporations. 

Under  the  broad  language  of  the  first  sec- 
tion. Express  and  Transportation  companies  are 
likewise  included  in  the  law,  when  their  busi- 
ness runs  into  different  States. 


12  The  Inter- State  Commerce  Act. 

And  Warehousemen  and  Storage-keepers  are 
perhaps  also  embraced  within  the  meaning  of 
the  law,  where  property  is  intrusted  to  their 
care,  and  they  undertake  to  deliver  it  in  another 
State,  because  the  concluding  language  of  the 
first  section  prescribes  that  all  charges  made 
*'  for  the  receiving,  delivering,  storage,  or  hand- 
ling of  such  property  "  shall  be  reasonable  and 
just. 

Internal  State  Commerce  Not  Affected, 

Fourth  :  It  is  expressly  provided  in  the 
Act,  that  its  provisions  shall  not  apply  to  the 
transportation  of  passengers  or  property,  or  to 
the  receiving,  delivering,  storage,  or  handling 
of  property,  wholly  within  one  State,  and  not 
shipped  to  or  from  a  foreign  country  from  or 
to  any  State  or  territory  as  aforesaid.    (Sec.  i.) 

This  exception  was  undoubtedly  incorporated 
in  the  Act,  in  deference  to  the  decisions  of  the 
Supreme  Court  of  the  United  Stsrtes,  which 
hold  that  the  power  of  Congress  does  not 
extend  to  regulating  commerce  completely  in- 
y     ternal.   (Gibbons  v.  Ogden,  9  Wheat,  i.) 

A  common  carrier,  accordingly,  may  transact 
two  classes  of  business,  viz.,  one  wholly  within 
any  State — in  which  case  the  business  is  un- 


The  Inter- State  Co7iimerce  Act, 


^3 


affected  by  the  Act ;  and  the  other  between  the 
different  States,  territories  or  foreign  countries, 
where  he  is  bound  to  comply  with  the  terms  of 
the  Statute. 


CHAPTER  III. 

RATES,     CHARGES,     AND     FARES     WHICH     COMMON 
CARRIERS    MAY    COLLECT. 

BY  the  last  paragraph  of  Section  i.  the 
compensation  of  common  carriers  is  fixed, 
and  it  is  there  declared  that  ''  all  charges  made 
for  any  service  rendered  or  to  be  rendered  in 
the  transportation  of  passengers  or  property 
as  aforesaid,  or  in  connection  therewith,  or  for 
the  receiving,  delivering,  storage,  or  handling 
of  such  property,  shall  be  reasonable  and  just  ; 
and  every  unjust  and  unreasonable  charge  for 
such  service  is  prohibited  and  declared  to  be  ti7i- 
lawfuir    (Sec.  i.) 

And  the  fourth  section  of  the  Act  makes  it 
unlawful  for  the  carrier  to  charge  or  receiv.e  any 
greater  compensation  for  a  shorter  than  for  a 
longer  haul,  irrespective  of  the  question  as  to 
whether  such  compensation  is  '*  reasonable  and 
just."     It  is  an  absolute  prohibition.     (Sec.  4.) 

First  :    The    first    question   which    naturally 

14 


TJie  Intci^- State  Commerce  Act.  i  5 

arises  under  this  section  is  as  to  the  power  of 
Congress  to  fix  the  charges  of  common  carriers. 

Is  this  a  ''regulation  of  commerce''  within 
the  meaning  of  the  Constitution  ? 

Some  Hght  is  thrown  upon  this  matter  by  the 
opinion  of  the  Supreme  Court  of  the  United 
States  (Munn  v.  Ihinois,  94  U.  S.,  113),  where 
the  general  subject  is  fully  examined,  and 
where  the  court  held,  that,  under  the  powers 
inherent  in  every  sovereignty,  a  government 
may  regulate  the  conduct  of  its  citizens  towards 
each  other,  and,  when  necessary  for  the  public 
good,  the  manner  in  which  each  shall  use  his 
own  property.  It  has  in  the  exercise  of  these 
powers  been  customary  in  England  from  time 
immemorial,  and  in  this  country  from  its  first 
colonization,  to  regulate  ferries,  common  car- 
riers, hackmen,  bakers,  millers,  wharfingers, 
inn-keepers,  etc.,  and  in  so  doing  to  fix  a  maxi- 
mum of  charge,  to  be  made  for  services  rendered, 
accommodations  ficrnisJied,  and  articles  sold. 
When  the  owner  of  property  devotes  it  to  a 
use,  in  which  the  public  has  an  interest,  he,  in 
effect,  grants  to  the  public  an  interest  in  such 
use,  and  must,  to  the  extent  of  that  interest, 
submit  to  be  controlled  by  the  public  for  the 
common  crood  as  lono^  as  he  maintains  the  usc^ 


1 6  The  Inter- State  Commerce  Act, 

He  may  withdraw  his  grants  by  discontinuing 
the  use.  The  Supreme  Court,  in  the  same 
case,  held  that  common  carriers  exercise  a  sort 
of  pubhc  office,  and  have  duties  to  perform  in 
which  the  pubHc  is  interested.  Their  business 
is  therefore  affected  with  a  pubHc  interest. 

Mr.  Chief-Justice  Waite,  who  deHvered  the 
opinion  of  the  court  in  that  case,  said  :  '*  In 
countries  where  the  common  law  prevails,  it  has 
been  customary  from  time  immemorial  for  the 
Legislature  to  declare  what  shall  be  a  reasojiable 
conipensatio7i  mider  such  circumstances,  or,  per- 
haps more  properly  speaki7ig,  to  fix  a  maxi- 
7num,  beyo7id  which  any  charge  made  would  be 
ttnreasonable.  Undoubtedly,  in  mere  private 
contracts  relating  to  matters  in  which  the  pub- 
lic has  no  interest,  what  is  reasonable  must  be 
ascertained  judicially,  but  this  is  because  the 
Legislature  has  no  control  over  such  a  contract. 
So,  too,  in  matters  which  do  affect  the  public 
interest,  and  as  to  which  legislative  control 
may  be  exercised,  if  there  are  no  statutory 
regulations  upon  the  subject,  the  courts  must 
determine  what  is  reasonable.  The  controlling 
fact  is  the  power  to  regulate  at  all.  If  that  ex- 
ists, the  ri^ht  to  establish  the  maximum  of 
charge,  as   one  of  the  means  of  regulation,  is 


The  Inter- State  Commerce  Act,  1 7 

implied.  In  fact,  the  common-law  rule,  which 
requires  the  charge  to  be  reasonable,  is  itself  a 
regulation  as  to  price.  Without  it  the  owner 
could  make  his  rates  at  will,  and  compel  the 
public  to  yield  to  his  terms  or  forego  the  use." 
(See  also  Chicago,  Burlington,  and  Ouincy 
R.  R.  Co.  V.  Iowa,  94  U.  S.,  155  ;  Peik  v. 
Chicago,  etc.,  Ry.  Co.,  94  U.  S.,  164.) 

But  the  reasoninof  of  these  cases  does  not 
cover,  it  seems,  the  fourth  section  of  the  law 
which  we  are  considering,  because  Congress 
does  not  attempt  to  fix  therein  any  limit  or  price 
of  compensation  for  the  carrier  ;  but  arbitrarily 
declares  that  a  common  carrier  shall  not  re- 
ceive a  greater  or  as  great  a  compensation  for 
a  short  as  for  a  long  haul,  entirely  irrespective 
of  the  merits  of  the  service,  and  what  it  is 
reasonably  and  justly  worth. 

Second  :  The  next  point  that  will  arise,  assum- 
ing the  power  of  Congress  to  fix  the  charges,  is 
as  to  what  constitutes  a  "  reasonable  and  just " 
charge. 

As  the  law  stood  before  the  Inter-State  Com- 
merce Act  passed — at  common  law — if  the  par- 
ties to  a  contract  did  not  stipulate  the  amount  to 
be  paid  for  any  given  service,  the  sum  rccovera- 


1 8  The  Liter-  State  Commerce  Act. 

ble,  by  the  person  furnishing  the  service,  was  a 
just  and  reasonable  sum.  In  the  absence  of 
special  contract,  this  rule  applied  to  common 
carriers  as  well  as  other  persons. 

But  as  the  law  now  is,  under  the  Inter-State 
Commerce  Act,  the  parties  are  no  longer  al- 
lowed to  make  absolute  contracts,  for  the  ren- 
dering of  a  service  in  the  transportation  of 
passengers  or  property,  or  in  the  receiving, 
delivering,  storage,  or  handling  of  the  same. 
The  common  carrier  and  shipper  are  no  longer 
permitted  to  deal  with  each  other  as  they 
please,  because,  so  far  as  the  amount  to  be  re- 
ceived for  the  services  is  concerned,  if  they  con- 
tract for  a  sum  not  ''  reasonable  and  just,"  such 
contract  is  void,  because  it  is  prohibited.  For- 
merly the  shipper  could  say  to  the  common 
carrier  :  "■  If  you  will  transport  certain  goods 
from  Chicago  to  New  York,  I  will  pay  you  one 
dollar  per  hundred  weight  "  ;  and  such  a  con- 
tract was  good,  and  could  be  enforced  by  the 
common  carrier,  regardless  of  the  fact  that  such 
charge  was  excessive  or  unreasonable,  because, 
in  the  absence  of  fraud,  the  law  would  not  in- 
terfere with  the  private  bargains  of  suitors.  It 
allows  its  subjects  to  make  their  own  bargains. 

But  now  it  is  otherwise  ;  no  contract  can  be 


The  Inter-  State  Commerce  Act.  1 9 

enforced  between  the  shipper  and  the  carrier, 
where  the  amount  claimed  for  the  service  is  not 
just  and  reasonable. 

The  question  as  to  what  is  a  "  reasonable  and 
just"  charge  is  to  be  determined  by  the  courts, 
as  intimated  by  the  Supreme  Court  of  the 
United  States  in  the  cases  to  which  we  have 
heretofore  alluded  (Munn  v.  Illinois,  94  U.  S., 
p.  1 1 3  ;  Chicago,  Burlington,  &  Ouincy  R.  R.  Co. 
V,  Iowa,  94  U.  S.,  155;  Peik  (7.  Chicago,  etc., 
Ry.  Co.,  94  U.  S.,  164)  ;  and  evidence  would 
be  admitted  on  the  part  of  both  the  shipper  and 
the  common  carrier  to  show  what  was  a  reason- 
able and  just  charge.  What  the  nature  of  such 
evidence  will  be,  depends  upon  each  individual 
case. 

The  ultimate  decision  of  the  question  would, 
in  an  ordinary  action  at  common  law,  be  left  to 
a  jury  to  determine  ;  but  under  the  13th,  14th, 
and  15th  sections  of  the  Inter-State  Commerce 
Act,  this  question,  of  what  is  a  reasonable  and 
just  charge,  may  also  be  determined  by  the 
Inter-State  Commerce  Commission. 

But  as  under  the  9th  section  of  the  Act,  any 
person  claiming  to  be  damaged  by  a  common 
carrier  may  bring  suit  In  his  name,  and  on  his 
own  behalf,  in  any  District  or  Circuit  Court  of 


20  The  Intel— State  Commerce  Act. 

the  United  States  of  competent  jurisdiction,  it 
follows  that  the  compensation  of  common  car- 
riers will  hereafter  be  largely  regulated  by  the 
decision  of  a  jury  ;  and  that  practically  the  rates, 
fares,  and  charges  for  the  transportation  of  pas- 
sengers and  property  will  be  placed  by  the  In- 
ter-State Commerce  Act  in  the  hands  of  that 
uncertain  and  capricious  body. 

The  question,  whether  a  charge  for  service 
made  by  a  common  carrier  is  reasonable  and 
just,  can  arise  in  two  ways  : 

I.  If  the  sum  claimed  for  the  service  by  the 
carrier  has  not  been  paid,  if  it  be  not  reasona- 
ble and  just,  it  cannot  be  recovered  from  the 
shipper. 

II.  If  such  amount  has  been  paid,  the  ship- 
per may  recover  the  excess  back  from  the  car- 
rier, either  in  an  action  at  law  under  the  8th  and 
9th  sections  of  the  Act,  or  by  appeal  to  the  Inter- 
State  Commerce  Commissioners  under  the  9th 
and  15th  sections  thereof.  But  the  injured 
party  cannot  invoke  or  pursue  both  remedies. 
(Sec.  9.) 

III.  In  addition  to  these  civil  remedies,  the 
common  carrier  may  be  prosecuted,  for  taking 
unreasonable  and  unjust  charges,  by  indictment 
as  for  a  misdemeanor.     (Sec.  10.) 


CHAPTER    IV. 

THE  ACTS  WHICH  THE  COMMON  CARRIER  IS  PRO- 
HIBITED FROM  DOING  BY  THE  INTER-STATE 
COMMERCE  ACT. 

THE  Inter-State  Commerce  Act  enumerates 
a  great  many  acts  on  the  part  of  com- 
mon carriers  which  are  specifically  prohibited. 
We  shall  proceed  to  enumerate  them  in  their 
order,  with  such  comments  as  each  section  sug- 
gests. 

Uiijtcst  Discriiiiination. 

First  :  The  second  section  declares  that  if 
any  common  carrier  subject  to  the  provisions 
of  the  Act  shall,  directly  or  indirectly,  by  any 
special  rate,  rebate,  drawback,  or  other  device, 
charge,  demand,  collect,  or  receive  from  any 
person  or  persons  a  greater  or  less  compensa- 
tion for  any  service  rendered,  or  to  be  ren- 
dered, in  the  transportation  of  passengers  or 
property,  subject  to  the  provisions  of  this  Act, 


2  2  The  Inter -Slate  Commerce  Act. 

than   it  charges,    demajids,  collects,  or  receives 
from  any  other  person  or  perso7zs  for  doing 

FOR  HIM  OR  THEM  A  LIKE  AND  CONTEMPORANE- 
OUS SERVICE  IN  the  tra7isportation  of  a  like 
kind  of  traffic  under  substantially  similar 
CIRCUMSTANCES  and  CONDITIONS,  such  common 
carrier  shall  be  deemed  guilty  of  unjust  dis- 
crimination, which  is  hereby  prohibited  and 
declared  to  be  unlawful. 

I.  A  literal  reading  of  this  section  of  the 
Act  would  seem  to  make  it  apply  to  services 
rendered  by  a  carrier  before  the  passage  of  the 
Act ;  because  the  language  is  :  ''  That  if  any  com- 
mon carrier  subject  to  the  provisions  of  this 
Act  shall,  directly  or  indirectly,  by  any  special 
rate,  rebate,  drawback,  or  other  device,  charge, 
demand,  collect,  or  receive  from  any  person  or 
persons  a  greater  or  less  compensation  y^r  any 
service  rendered,''  etc.,  it  shall  be  guilty  of  un- 
just discrimination.  But  the  obvious  intent 
and  spirit  of  the  law  were  to  make  it  apply  to 
cases  occurring  after  it  went  into  effect. 

II.  The  offence  of  ''unjust  discrimination" 
is  made  up  of  two  distinct  branches, — viz.,  frst, 
the  mere  charging  or  demanding  a  greater  or 
less  compensation  for  any  service  rendered,  or 
to  be  rendered,  than  that  charged  or  demanded 


The  Liter- State  Commerce  Act,  23 

from  other  persons  for  doing  a  like  and  con- 
temporaneous service,  constitutes  the  offence  ; 
second,  the  act  of  collectzno-  or  receivino-th.^  com- 
pensation  is  also  a  misdemeanor. 

III.  The  question,  as  to  what  is  the  "  char- 
ging," ''demanding,"  ''collecting,"  or  "re- 
ceiving "  of  3. greater  or  less  compensation  than 
that  charged,  demanded,  collected,  or  received 
from  any  other  person  or  persons,  for  doing 
for  him  or  them  "  a  like  and  contemporaiieoics 
service  in  the  transportation  of  a  like  kind  of 
traffic,  tender  stibstantially  similar  circum- 
stances and  conditions^'  is  one  for  the  courts  or 
for  the  Inter-State  Commerce  Commission,  as 
the  case  may  be,  to  determine.  We  consider 
it  more  fully  in  connection  with  the  "fourth" 
section  of  the  Act. 

The  lano^uac^e  is  ambiguous  and  indecfeive,  and 
this  section  of  the  law  was  the  subject  of  much 
criticism  in  Cons^ress  wh^n.the  Bill  was  discussed. 
(See  debates  of  Congress,  January,  1887.) 

But  be  that  as-  it  may,  the  evident  object  of 
the  framers  of  the  law  was  to  seek  to  establish 
a  uniform  and  unvarying  rate  of  compensation 
for  services  of  the  same  or  a  similar  description 
rendered  in  the  transportation  of  passengers  or 
property. 


24  The  Inter -State  Co7ninerce  Act, 

IV.  It  will  be  observed,  however,  that  the 
language  of  this  second  section  does  not  apply- 
to  the  receiving,  delivering,  storage,  or  hand- 
ling of  property. 

V.  The  remedies  of  the  party  injured  under 
the  second  section  are  the  same  as  those  fur- 
nished for  a  violation  of  the  first  section,  and  are 
to  be  found  by  reference  to  Sections  8,  9,  and 
10  of  the  law. 

Ufidue  Preference  ;    Unreaso7iable  Prejudice. 

Second  :  The  third  section  provides  that  it 
shall  be  unlawful  for  any  common  carrier  sub- 
ject to  the  provisions  of  this  Act  to  make  or 
give  any  ttndtte  or  ttnreasonable  preferejice  or 
advantage  to  any  particiilar  person,  company. 
Jinn,  corporation,  or  locality,  or  any  particular 
description  of  traffic,  in  any  respect  whatsoever,, 
or  to  subject  any  particular  person,  company, 
firm,  corporation,  or  locality,  or  any  particular 
description  of  traffic,  to  any  undue  or  2cnreason- 
able  prejudice  ^r  disadva^ttage  in  any  respect 
whatsoever. 

Every  common  carrier  subject  to  the  pro- 
visions of  this  Act  shall,  according  to  their  re- 
spective powers,  afford  all  reasonable,  proper y 


The  Inter- Slate  Commerce  Act.  25 

and  equal  facilities  for  the  interchange  of  t^^affic 
between  their  respective  lines ^  and  for  the  re- 
ceiving.forwar  dingy  and  delivering  of  passengers 
and  property  to  and  from  their  several  lilies  and 
those  connecting  therewith,  and  shall  not  dis- 
criminate in  their  rates  and  charo-es  betweeri 
siich  con7iecting  lilies ;  but  this  shall  not  be  con- 
strued as  requiring  any  such  common  carrier  to 
give  the* use  of  its  tracks  or  terminal  facilities 
to  another  carrier  engaged  in  like  business. 
(Sec.  3.) 

The  first  paragraph  of  this  section  declares 
as  unlawful  six  distinct  acts,  viz.  : 

1st.  To  make  or  give  any  undue  or  un- 
reasonable preference  or  advantage  to  any  par- 
ticular person,  company,  firm,  or  corporatio7i. 

2nd.  To  make  or  give  any  such  preference 
to  ^iViy  particular  locality. 

3d.  To  make  or  give  any  such  preference 
to  2.xiy  pa7'ticular  description  of  traffic  in  any 
respect  whatsoever. 

4th.  Or,  to  SUBJECT  any  particiLlar  person, 
company,  firm,  or  corporation,  to  any  undue  or 
tcnreasojtable  prej'tidicc  or  disadvantage,  in  any 
respect  iv  hat  soever. 

5th.  Or  to  subject  2Lwy  partictclar  locality  to 
such  prejudice  ; 


26  TJie  Inter- State  Commerce  Act. 

6th.  Or  to  subject  any  particular  descrip- 
tion of  traffic  to  such  prejudice  or  disadvan- 
tage. 

This  section  involves  two  distinct  issues  of 
fact,  viz.  :  first,  as  to  what  is  the  making  or  giv- 
ing of  an  undue  or  unreasonable  preference  or 
advantage  ;  or,  second,  what  is  the  subjecting  of 
any  person,  etc.,  to  any  tutdue  or  u7ireasonable 
prejudice  or  disadvantage  in  any  respect  what- 
soever. 

These  questions  of  fact  must  be  determined 
by  the  United  States  courts,  or  the  Inter-State 
Commerce  Commission,  as  the  case  may  be. 

Carriers  Deali7ig  with  Each    Other. 

The  second  paragraph  of  this  third  section 
enjoins  upon  each  common  carrier  three  distinct 
duties  in  its  dealings  with  other  carriers,  viz.  : 

1st.  To  afford  all  reasonable,  proper,  a7td 
eqzial  facilities  for  the  inter chafige  of  traffic  be- 
tween their  respective  lines. 

2d.  Afford  such  facilities  for  the  receiv- 
i'Jigy  forwarding,  and  deliveri7ig  of  passengers 
and  property,  to  and  from  their  several  lines, 
and  those  connecting  therewith  ;    and 

3d.  Shall  not  discriminate  in  their  rates 
and  charges  betwee^i  stcch  connecting  lines. 


The  hiter-State  ComTnerce  Act.  27 

The  performance  of  these  duties  are  all  ques- 
tions of  fact,  to  be  determined  by  the  courts  of 
the  United  States,  or  the  Inter-State  Commerce 
Commission,  as  in  the  cases  arising  under  the  pre- 
ceding paragraph  of  the  same  section.  They 
all  involve  important  and  delicate  issues  of  fact. 

Abrogation  of  Franchises  a?id  Contracts. 

Of  course,  if  this  legislation  is  sustained,  it 
results  in  practically  abrogating  a  great  many 
of  the  important  privileges  and  franchises  now 
enjoyed  by  different  common  carriers,  either 
existing  by  virtue  of  grants  to  them  from 
different  States  ;  or  by  virtue  of  private  con- 
tracts entered  into  between  such  carriers  and 
private  persons,  or  by  carriers  with  each  other. 

I.  All  grants  of  franchises  by  States  to  com- 
mon carriers,  subject  to  the  provisions  of  this 
Act,  authorizing  them  to  levy  or  collect  a  cer- 
tain rate  for  mileage  upon  passengers,  or  a  cer- 
tain rate  upon  freight,  or  grant  of  any  other 
description  of  special  right,  prerogative  or  fran- 
chise, inconsistent  with  the  Inter-State  Com- 
merce Act,  are  vitiated  and  rendered  nugatory  ; 
because,  under  the  second  subdivision  of  Article 
VI.  of  the  Constitution  of  the  United  States,  the 


28  The  Inter -State  Co^nmerce  Act. 

laws  of  the  United  States  shall  be  the  supreme 
law  of  the  land. 

II.  So  all  2^nvate  contracts,  between  carriers 
and  individuals,  relating  to  the  transportation 
of  persons  or  property,  which  are  inconsistent 
with  the  terms  of  this  Act,  are  likewise  vitiated 
and  rendered  nugatory. 

III.  And  all  traffic,  freight,  or  other  agree- 
ments between  common  carriers  subject  to  this 
law,  relating  to  the  transportation  of  passengers 
or  freight,  are  likewise  vitiated. 

IV.  The  question  will  accordingly  occur  in 
this  connection,  whether  the  Act  in  this  respect 
is  not  contrary  to  the  Fifth  Amendment  to  the 
Constitution  of  the  United  States,  which  pro- 
vides that  no  person  shall  be  deprived  of  his 
property  without  due  process  of  law,  ''  nor  shall 
private  property  be  taken  for  public  use  with- 
out just  compensation." 

Long-  and  SJioid-'' HatiV  Provision. 

Third :  The  fourth  section  of  the  Act  deals 
with  the  ''  short-haul "  subject,  and  provides 
that  it  shall  be  unlawful  for  any  common  carrier 
subject  to  the  provisions  of  this  Act  to  charge 
or  receive  any  greater  compensation  in  the  ag- 
gregate for  the  transportation  of  passengers  or  of 


The  hiter-  State  Commerce  Act. 


29 


like  kind  of  property,  render  sitbstantially  simi- 
lar circumstances  and  conditio7is,  for  a  shorter 
tha7i  for  a  longer  distance  over  the  same  line 
i7i  the  same  direction,  the  shorter  beine  included 
within  the  longer  distance ;  but  this  shall  not 
be  construed  as  authorizing  any  common  carrier 
within  the  terms  of  this  Act  to  charge  and  receive 
2S great  compensation  for  a  shorter  as  for  a  longer 
distance  :  provided,  however,  that  upon  applica- 
tion to  the  Commission  appointed  under  the 
provisions  of  this  Act,  such  common  carrier  may, 
in  special  cases,  aftc7^  investigation  by  the  Com- 
Tnission,  be  authorized  to  cha^^ge  less  for  a 
longer  than  for  shorter  distances  for  the  trans- 
portation of  passengers  or  property  ;  and  the 
Commission  may  from  time  to  time  prescribe 
the  extent  to  which   such  desio^nated  common 

o 

carriers  may  be  relieved  from  the  operation  of 
this  section  of  the  Act.     (Sec.  4.) 

I.  This  section  creates  a  very  unusual  pre- 
cedent in  American  legislation,  for  the  principle 
that  underlies  the  making  of  all  laws,  especially 
of  a  penal  character,  viz.,  that  they  are  fixed 
and  immutable  rules  for  the  government  of  the 
subjects  of  a  country,  is  here  departed  from, 
and  the  law  is  relaxed  at  the  will  of  the  Com- 
m,issio7i  named  in  the  Act. 


30  The  Inter- State  Commerce  Act. 

Until  the  Commission  acts,  however,  it  is  a 
misdemeanor  for  a  common  carrier  to  charge  a 
greater  compensation  for  a  shorter  than  for  a 
longer  distance.     (See  Sec.  lo.) 

The  Commission  is  clothed  with  the  extra- 
ordinary power  of  rendering  nugatory  this 
penal  act,  by  prescribing  the  extent  to  which 
a  common  carrier  may  be  relieved  from  its 
operation.  Whether  the  Congress  of  the 
United  States  has  the  right  to  delegate  its 
powers  under  the  Constitution,  in  the  respect 
here  adverted  to — to  suspend  the  operation  of 
a  law — is  one  of  the  questions  which  the  courts 
must  decide. 

It  is  very  evident  that  Congress  was  firmly 
convinced  that,  in  many  instances,  the  common 
carrier  was,  and  would  be,  justified  in  charging 
a  greater  or  as  great  a  compensation  for  a 
shorter  than  for  a  longer  haul,  or  the  unusual 
power  of  rendering  nugatory  the  effects  and 
penalties  of  the  Act  would  not  have  been  con- 
ferred upon  this  quasi-judicial  body — the  Inter- 
State  Commerce  Commission. 

II.  The  exact  meaning  and  effect  of  this 
fourth  section  were  conceded  to  be  ambiguous 
and  doubtful  in  the  debates  in  Congress  when 
this  law  was  discussed.     (See  debates  of  Con- 


The  Inter- State  Commerce  Act.  31 

gress,  January,  1887.)  It  will,  accordingly, 
not  be  regarded  as  remarkable,  if  the  courts 
should  find  it  impossible  to  interpret  language 
which  apparently  presented  no  definite  mean- 
ing to  the  minds  of  the  legislators  who  framed 
and  passed  the  Act. 

III.  ''  It  shall  be  unlawful  for  any  common 
carrier  ...  to  charge  or  receive  2Siy greater 
compensation  in  the  aggregate  for  the  trans- 
portation of  passengers,  or  of  like  kind  of 
property  tender  substantially  similar  circum- 
stances and  conditions  for  a  shorter  than  for 
a  lono'er  distance  .  .  .  but  this  shall  not 
be  construed  as  authorizing  any  common  car- 
rier ...  to  charge  and  receive  as  great 
compensation  for  a  shorter  as  for  a  longer  dis- 
tance    . 

There  are  two  distinct  inhibitions  in  this 
section :  first,  the  carrier  is  prohibited  from 
charging  a  greater  compensation  for  a  shorter 
than  for  a  longer  haul ;  and,  second,  then  the 
Act  goes  on  to  declare  that  it  shall  not  be  con- 
strued as  authorizing  the  carrier  to  charge  "  as 
GREAT  compensation  for  a  shorter  as  for  a  longer 
distance." 

The  Act  says  to  the  carrier  :  "You  shall  not 
charge  a  greater  compensation   for  a  shorter 


32  The  Inter- State  Commerce  Act. 

than  for  a  longer  haul  under  substantially  simi- 
lar circumstances,  etc. — nay,  you  shall  not 
even  charge  as  great  a  compensation  for  a 
shorter  as  for  a  longfer  distance — whether  the 
same  circumstances  exist  or  not." 

The  meaning  is  badly  expressed,  but  it  seems 
to  us  that  this  is  the  only  interpretation  that 
can  be  put  upon  this  branch  of  the  section. 

IV.  Considered  together,  the  language  of 
the  entire  section  presents  the  same  difficulty ; 
and  it  may  absolutely  fail  for  indefiniteness  or 
want  of  meaning.  ''  It  shall  be  unlawful  .  .  . 
to  charge  .  .  .  any  greater  compensation 
in  the  aggregate  for  .  .  .  transportation 
^lnder  substantially  similar  circum- 
stances and  conditions  f 07''  a  shorter  than  for  a 
longer  distance T 

This  is  a  prohibition  to  the  carrier  that  he 
shall  not  charge  a  greater  compensation  in  the 
aecfreofate  for  a  shorter  haul  made  under  sttb- 
stantially  si^nilar  circumstances  and  conditions. 
Here  is  a  qualification.  Suppose  the  qualifica- 
tion does  not  exist  ?  Suppose  the  ''  shorter 
haul  "  to  be  made  under  substantially  dissimi- 
lar circumstances  and  conditions  ?  Can  the 
carrier  charge  or  receive  a  greater  compensa- 
tion for  the  ''  shorter  haul  "  ?     It  would  seem 


TJie  Inter- State  Commerce  Act.  33 

not ;  for  the  remaining  language  of  the  para- 
graph says  most  emphatically  :  ''  but  this  shall 
not  be  construed  as  authorizing  any  common 
carrier  within  the  terms  of  this  Act  to  charge  or 
receive  as  great  compensation  for  a  shorter  as 
for  a  longer  distance."  And  this  subsequent 
language  seems  to  wipe  out  the  preceding 
qualification  altogether.  If  this  view  be  cor- 
rect, the  remedy  of  the  carrier  is  to  apply  to 
the  Inter-State  Commerce  Commission  for  a 
suspension  of  the  prohibition.  But,  as  we  have 
said,  the  language  is  faulty,  ambiguous,  and  per- 
haps so  confused  as  to  be  incapable  of  inter- 
pretation. 

V.  But  assuming  that  the  clause  of  this 
section  (which  contains  the  words,  ''  but  this 
shall  not  be  construed  as  authorizing  .  .  . 
any  .  .  .  carrier  ...  to  charge  .  .  . 
as  great  compensation  for  a  shorter  as  for  a 
longer  distance  ")  does  not  destroy  the  qualifi- 
cation, and  this  is  the  view  adopted  by  all 
of  the  advocates  of  the  Act,  as  is  seen  in 
the  notes  herewith,'  the  question  occurs  as  to 

'  Remarks  of  Hon.  Shelby  M.  Cullom  in  the  Senate  of  the  United 
States,  on  tlie  tenth  day  of  January,  18S7. 

Mr.  Cullom  addressed  the  Senate  in  favor  of  the  conference  re- 
port, confining  his  remarks  principally  to  the  fourth  section  as  to  the 
long  and  short  haul.  The  bill,  he  said,  had  stood  remarkal'ly  well 
the  test  of  tlie  general  and  particular  scrutiny  to  which  it  had  been 


34  ^^^  Inter- State  Cor}i7nerce  Act. 

the  meaning  of  the  words  "■  under  substantially 

similar  circnvistances  and  conditions, 

over  the  same  line,  in    the  same  direction,  the 

subjected.  Its  general  provisions  had,  for  the  most  part,  met  with 
approval,  while  the  feature  most  strongly  objected  to  (the  fourth 
section)  was  misunderstood  if  not  misrepresented.  He  said  :  "  The 
objection  made  to  this  section  as  it  now  stands,  which,  if  it  were 
well  founded,  I  should  regard  as  the  most  serious,  is  that  it  is 
indefinite  and  ambiguous,  that  it  is  open  to  more  than  one  con- 
struction. Of  course,  we  cannot  undertake  to  say  positively  what 
construction  will  be  put  upon  the  language  used  by  the  courts  if 
they  shall  be  called  upon  to  determine  the  meaning  of  the  section. 
It  seems  to  me,  however,  that  but  one  construction  can  be  reason- 
ably and  properly  placed  upon  this  section,  especially  when  it  is 
considered,  as  it  must  be,  in  connection  with  the  other  provisions 
of  the  bill,  and  that  its  meaning  is  perfectly  clear.  But  in  view 
of  the  erroneous  construction  that  seems  to  have  been  put  upon 
this  section  in  some  quarters,  I  deem  it  proper  to  state  that  there 
seems  to  be  no  difference  of  opinion  as  to  its  meaning  among  the 
conferrees  on  the  part  of  the  Senate.  ...  I  think  the  Senator 
from  Connecticut  (Mr,  Piatt)  and  the  Senator  from  Tennessee 
(Mr.  Harris)  understand  the  section  as  I  do,  and  I  think  I  am 
justified  in  saying  that  we  would  not  approve  it  if  w^e  supposed  or- 
believed  it  to  mean  what  some  complain  that  it  does  mean  or  may 
be  made  to  mean.  The  short-haul  section  simply  undertakes  to  lay 
down  in  specific  terms  a  rule  or  principle  which,  as  I  have  always 
contended,  is  already  in  effect  contained  in  other  provisions  of  the 
bill.  The  first  requirement  of  the  bill  on  the  subject  of  rates  is 
found  in  the  first  section,  and  is  that  all  rates  shall  be  '  reasonable 
and  just.'  This  is  in  effect  a  declaration  that,  under  similar  circum- 
stances and  conditions,  a  greater  sum  shall  not  be  charged  for  a 
shorter  than  a  longer  distance,  because  under  such  circumstances  it 
would  not  be  '  reasonable  and  just '  to  make  such  a  charge.  The 
next  requirement  of  the  bill  that  afifects  this  question  is  found  in  the 
first  part  of  the  third  section,  which  (quoting  the  first  part  of  the 
third  section)  forbids  giving  an  undue  or  unreasonable  preference  or 


TJie  Inter- State  Conimerce  Act.  35 

shorter  belnof  Included  within  the  loncrer  dis- 
cs t> 

tance." 

This   Is  language   of  the  most  general  and 

advantage  to  any  particular  locality.  This  is  likewise  a  declaration 
that  a  greater  sum  shall  not  be  charged  for  a  shorter  than  for  a 
longer  haul  under  similar  circumstances  and  conditions,  because 
such  a  charge  would  be  the  making  or  giving  of  an  '  undue  or  un- 
reasonable preference  or  advantage'  to  one  particular  'locality,'  or 
would  subject  some  other  particular  '  locality  'to  an  *  undue  or  un- 
reasonable prejudice  or  disadvantage.'"  Mr.  Cullom  then  recited 
section  four,  and  said  : 

"As  I  understand  it,  this  section,  as  it  now  stands,  simply  pro- 
hibits a  railroad  corporation  from  charging  a  greater  aggregate  sum 
— not  a  higher  rate — for  a  shorter  than  for  a  longer  distance  over 
the  same  line,  in  the  same  direction,  and  under  substantially  similar 
circumstances  and  conditions,  when  the  shorter  is  included  within 
the  longer  distance.  There  is  no  other  prohibition  made  in  positive 
terms.  The  declaration,  that  '  this  shall  not  be  construed  as  author- 
izing any  common  carrier  within  the  terms  of  this  act  to  charge  and 
receive  as  great  compensation  for  a  shorter  as  for  a  longer  distance,' 
does  not  in  terms  prohibit  the  charging  as  much  for  a  shorter  as  for 
a  longer  distance,  but  simply  withholds  the  legislative  sanction  from 
the  making  of  such  a  charge.  This  qualifying  clause  negatives  the 
inference  that  might  possibly  be  drawn  from  the  language  of  the  sec- 
tion without  these  words,  namely,  that  an  equal  charge  for  a  shorter 
distance  is  authorized  by  inference,  because  only  a  greater  charge 
is  prohibited.  This  qualification,  therefore,  leaves  the  question  cf 
wheth^  an  equal  amount  can  be  charged  for  the  shorter  distance  to 
be  determined  by  the  provisions  of  the  bill  to  which  I  have  already 
referred,  requiring  all  charges  to  be  reasonal)le,  and  forbidding  the 
giving  of  an  unreasonable  preference  or  advantage  to  any  particular 
locality.  .  .  .  The  recjuirement  of  the  fourth  section,  then,  is  that 
as  between  shipments  of  the  same  kind,  in  tlie  same  direction,  over 
the  same  line,  and  made  under  substantially  similar  circumstances  and 
conditions,  a  greater  sum  shall  not  be  charged  for  a  shorter  than  for 
a  longer  haul  when  the  shorter  comprises  part  of  the  longer  haul — 


36  The  Inter- State  Com^nerce  Act. 

comprehensive  character.  It  refers  to  all  of 
the  circtwistances  and  co7iditions  existing  at  the 
time  of  the  transportation.      It  is  useless  to  un- 

not  that  a  higher  rate  shall  not  be  charged  per  mile,  but  that  a  greater 
aggregate  sum  shall  not  be  charged.  .  .  .  The  limitations  placed 
upon  the  prohibition  that  is  made  are  very  significant,  and  they  must 
not  be  overlooked.  They  require  that  in  determining  the  sum  that 
may  be  charged  for  a  shorter  as  compared  with  a  longer  distance  the 
requirement  must  be  made  : 

"  I.   Between  shipments  '  of  like  kind  of  property.' 
"  II.    '  Under  substantially  similar  circumstances  and  conditions.' 
"  III.   *  Over  the  same  lines.' 
"  IV.  In  the  same  direction. 

"  V.  When  the  shorter  is  '  included  within  the  longer  distance.' 
"  When  the  act  is  to  be  applied  in  any  given  case  to  measure  the 
charge  that  may  be  made  for  any  distance,  as  compared  with  the 
longer  distance,  all  of  these  limitations  must  be  taken  into  account, 
and  they  must  all  apply  to  the  case — not  three  or  four  of  them,  but  all 
of  them.  The  first,  fourth,  and  fifth  of  these  limitations  do  not  ap- 
pear to  call  for  any  explanation,  but  the  meaning  of  the  second  and 
third  may  need  some  explanation.  As  I  understand  them,  the  words 
*  circumstances  and  conditions '  mean  the  conditions  that  govern 
railway  traffic  and  the  circumstances  under  which  it  is  transported. 
To  my  mind  these  words  are  full  of  meaning.  They  comprehend 
all  the  circumstances  and  conditions  that  may  justify  differences  in 
rates,  such  as  competition  with  other  railroads  and  with  water 
routes,  the  volume  and  character  of  business  at  different  points,  the 
difference  in  terminal  expenses,  and  the  cost  of  service  in  each  case. 
If  the  words  used  were  '  the  same  circumstances  and  conditions,'  in- 
genious railway  gentlemen  would  be  able  to  show  that  the  circum- 
stances and  conditions  were  never  exactly  the  same  in  any  two  cases. 
And  they  might  also  be  able  to  show  that  they  were  not  '  similar,'  if 
that  was  the  word  used.  But  the  words  '  substantially  similar  ' 
impart  enough  latitude  to  the  comparison  to  enable  the  courts  to 
exercise  a  sound  discretion  and  common-sense  in  passing  upon  cases 
that  may  arise.     So  far  as  any  one  railroad  company  is  concerned, 


The  Inter- State  Commerce  Act.  37 

dertake  to  specify  what  these  "  circumstances 
and  conditions  "  may  be  ;  because  each  case 
must  be  judged  by  its  individual  facts. 

therefore,  the  sum  which  it  may  charge  for  a  haul  from  one  end  of 
its  railroad  to  the  other  end  becomes  the  maximum  amount  it  can 
charge  for  any  shorter  haul  over  that  road  in  the  same  direction  and 
under  substantially  similar  circumstances  and  conditions  when  the 
shorter  distance  is  included  within  the  longer. 

"  But  the  question  that  seems  to  trouble  those  who  object  to  the 
section  as  it  stands  is,  whether  the  maximum  thus  fixed  is  the  sum 
which  a  railroad  company  charges  upon  shipments  originating  at  and 
destined  to  points  upon  its  own  road,  or  whether  the  maximum  is 
the  sum  which  it  accepts  as  its  share  of  a  through  rate  upon  ship- 
ments passing  over  its  road  which  originate  at  or  are  destined  to 
points  upon  another  road.  It  seems  clear  to  me  that  there  can  be 
but  one  answer  to  that  question.  In  the  first  place,  the  measure  of 
the  charge  that  may  be  made  for  the  shorter  distance  is  the 
sum  that  is  charged  for  a  longer  distance  over  the  same  line 
and  under  substantially  similar  circumstances  and  conditions. 
The  rates  fixed  by  a  railroad  company  between  points  upon  its  own 
road  are  clearly  rates  upon  one  line,  or,  in  the  terms  of  the  bill, 
'  the  same  line.'  A  railroad  company  can  make  and  control  the 
rates  upon  its  own  road,  and  the  section  says  that  in  making  such 
rates  the  short-haul  principle  shall  be  observed.  A  railroad  com- 
pany cannot  control  rates  over  the  roads  of  another  company.  But 
when  two  or  more  companies  unite  in  making  joint  rates  over  their 
respective  roads,  they  become  in  the  eye  of  this  bill  one  line,  and  this 
section  says  that  the  short-haul  principle  must  be  observed  in  making 
rates  over  that  line,  the  two  or  more  roads  composing  it  being,  with- 
in the  meaning  of  the  section,  the  same  line  so  far  as  such  joint  rates 
are  concerned.  The  word  railroad  is  used  throughout  the  bill,  and 
the  word  line  is  used  only  in  tliis  section.  The  courts  will  be  bound 
to  assume  that  the  word  line  means  something  different  from  the 
word  railroad,  or  it  would  not  have  been  used  in  this  one  instance 
when  the  word  railroad  would  naturally  have  been  used  if  somctliing 
different  had  not  been  intended.     The  wt)rd   line  means  a  railro.id 


38  The  Inter- State  Commerce  Act. 

It  also  exclusively  refers  to  a  transportation 
over  the  same  line  (does  this  mean  the  same 
company?     Is  the   word    "line"   synonymous 

or  a  combination  of  railroads.  It  means  a  route.  Section  7  of  the 
bill  requires  the  carriage  of  freights  to  be  '  treated  as  one  continuous 
carriage  from  the  place  of  shipment  to  the  place  of  destination,' 
and  this  could  not  be  done  in  the  case  of  shipments  over  connecting 
Toads,  if  the  word  used  in  this  section  was  '  railroad, '  instead  of  line. 
.  .  .  The  joint  through  rates  which  are  made  by  two  or  more  railroad 
-companies,  between  points  upon  their  respective  roads,  are  made  over 
an  entirely  different  and  distinct  line  from  that  over  which  any  one 
of  the  companies  individually  makes  rates.  And  they  are  also  made 
•under  different  *  circumstances  and  conditions  '  from  those  which 
govern  and  determine  rates  made  over  a  single  railroad.  The  two 
transactions  are  separate  and  distinct,  neither  being  necessarily  gov- 
erned by  the  other.  Furthermore,  the  making  of  joint  through  rates 
is  specifically  recognized  by  the  bill  in  the  section  requiring  publicity 
of  rates,  and  nowhere  in  the  bill  can  any  thing  be  found  in  relation 
to  the  division  of  a  joint  rate  by  connecting  roads.  I  am  satisfied, 
therefore,  that  the  only  construction  that  is  warranted  by  the  lan- 
guage of  the  section  is  the  one  I  have  given  it,  and  that,  instead  of 
requiring  rates  to  be  measured  by  the  percentage  of  a  through  rate 
which  a  road  accepts,  or  of  requiring  through  rates  over  connecting 
roads  to  be  an  aggregation  of  the  local  rates  over  each  road,  as  some 
have  claimed,  the  section  as  it  stands  simply  requires  that  each  rail- 
road company  shall  observe  the  short-haul  principle  as  to  its  own 
rates,  and  that  the  same  principle  shall  also  be  observed  by  a  com- 
bination of  railroads  as  to  the  joint  through  rates  between  points 
upon  their  respective  roads  agreed  upon  by  such  a  combination." 

Mr.  Hoar  asked  Mr.  Cullom  whether  the  construction  put  upon 
the  section  by  the  Senate  conf errees  (that  it  only  prohibited  the  char- 
ging of  a  larger  gross  sum  for  the  shorter  than  for  the  longer  haul,  and 
did  not  prohibit  a  larger  proportionate  charge)  was  the  sense  in  which 
the  House  conferrees  construed  it. 

Mr.  Cullom  in  substance  rephed  that  there  was  no  question  but 
that  every  meml^er  of  the  conference  committees  of  both  houses  un- 


The  Liter- State  Comme^xe  Act.  39 

with  ''company"?),  in  the  same  direction,  the 
shorter  beinor  included  within  the  lonsrer  dis- 
tance. 

qualifiedly  understood  that  the  fourth  section  was  not  to  be  construed 
as  a  pro  rate  per  ton  per  mile  law,  but  as  a  prohibition  to  charge  in 
the  aggregate  the  same  amount  for  the  short  as  for  the  long  dis- 
tance, unless  under  certain  circumstances.  .  .  .  One  of  the  ele- 
ments in  the  objection  to  the  bill  was  the  misinterpretation  of  this 
fourth  section.  There  has  seemed  to  be  a  determination  to  construe 
this  section  as  a  pro  rate  per  mile  section.  lie  undertook  to  say 
that  no  member  of  the  conference  committees  ever  dreamed  that 
the  language  of  the  fourth  section  could  be  so  construed. 

Mr.  Hoar  suggested  the  case  of  the  export  trade  of  Boston 
(amounting  to  $125,000,000  a  year),  and  on  the  materials  of  which 
the  Massachusetts  railroads  were  allowed  a  rebate  of  5  per  cent,  on 
account  of  the  ports  of  New  York,  Philadelphia,  and  Baltimore  be- 
ing 250  miles  nearer  to  Chicago  than  the  port  of  Boston  ;  and  he  in- 
timated that,  under  the  fourth  section,  the  Massachusetts  railroads 
would  either  have  to  cut  down  their  local  rates  or  Boston  would  lose 
its  foreign  trade. 

Mr.  Cuilom  thought  that  perhaps  it  was  a  little  unfortunate  that 
Boston  was  further  from  the  centre  of  gravity  than  New  York,  but 
he  did  not  think  there  was  any  thing  in  the  bill  which  would  prevent 
railroads  carrying  produce  to  Boston  just  as  cheaply  as  the  railroads 
carrying  produce  to  New  York  from  Chicago.  Omaha,  or  San 
Francisco. 

Mr.  Hoar,  suggesting  that  Mr.  Cuilom  misapprehended  his  mean- 
ing, restated  the  proposition. 

Mr.  Cuilom  in  substance  replied  that,  so  far  as  the  fourtli  sec- 
tion was  concerned,  there  was  nothing  in  it  which  would  prohibit 
railroad  companies  taking  these  products  at  exactly  the  same  rate  to 
Boston  as  to  New  York.  It  was  pretty  difficult,  he  said,  to  pass  any 
act  providing  any  regulation  whatever  which  woukl  not  appear  to  in- 
terfere harshly  with  what  somebody  was  doing.  He  had  no  disposition 
to  interfere  with  the  foreign  commerce  of  the  countr)-.  He  would  very 
much  prefer  to  see  the  foreign  commerce  increase,  if  it  could  he  done 


ii   W  iA 


40  The  Intc7^- State  Comrnerce  Act. 

VI.  Finally,  there  is  no  doubt  that  ''  the 
Commission  may  from  time  to  time  prescribe 
the  extent  to  which  such  designated  common 

consistently  with  the  protection  of  the  interests  of  the  great  mass  of 
the  people  outside  of  the  seaports.  .  .  ,  They  were  met  here 
with  this  condition  of  affairs, — unjust  discrimination,  extortion, 
secret  rebates,  and  all  manner  of  unjust  practices,  which  had  been 
going  on  for  years  by  railroad  corporations  because  there  had  been 
no  regulation  of  them  by  the  Government  of  the  United  States. 
Now  they  had  before  them  a  bill  which  undertakes,  in  a  moderate 
degree,  to  apply  to  them  some  sort  of  regulation.  The  bill  provided 
that  there  should  be  no  secret  rebate,  no  unjust  discrimination,  no 
extortion,  and  that  there  should  be  no  greater  charge  for  a  short 
haul  than  for  a  longer  haul  (on  the  same  line)  under  exactly  similar- 
circumstances  and  conditions.  He  did  not  believe  that  the  bill 
would  interfere  with  the  foreign  trade  of  Boston.  He  did  not 
believe  that  the  Senator's  constituents  would  be  interrupted  in 
tlieir  foreign  commerce  in  the  slightest  degree  by  this  bill.  But  if 
Congress  was  going  to  regulate  railroad  corporations  at  all,  and 
to  stop  the  discriminations  by  which  towns  were  built  up  and 
towns  were  destroyed,  there  must  be  something  in  the  bill  to  do  it,. 
or  else  the  bill  might  as  well  be  laid  on  the  table. 

[From  editorial  in  New  York  Times,  January  15,  1887  : 
THE  LONG  AND   SHORT   HAUL. 

"  The  debate  of  the  last  two  days  in  the  Senate  on  the  Inter-State 
Commerce  bill  has  turned  almost  wholly  upon  the  long-  and  short- 
haul  provision  of  the  fourth  section.  The  explanations  and  argu- 
ments which  have  been  made  confirm  us  in  our  original  opinion  of 
the  meaning  and  effect  of  this  provision.  Our  confidence  in  the 
view  first  taken  was  somewhat  unsettled  by  the  protests  of  prominent, 
railroad  men  who  ought  to  be  capable  of  understanding  the  exact 
meaning  of  the  bill,  and  who  have  exceptional  knowledge  of  the 
facts  and  requirements  of  the  railroad  business.  But  we  are  con- 
vinced that  their  protests  have  been  based  either  upon  a  misconcep- 
tion or  a  wilful  perversion  of  the  long-  and  short-haul  section.  Their 
obstinacy  in  adhering  to  an  untenable  ground  was  well  illustrated  ia 


*  The  Liter-  State  Commerce  Act,  4 1 

carrier  may  be  relieved  from  the  operation  of 
this  section  of  the  Act." 

VII.   It  will  thus  be  seen  that  the  preceding 

the  speech  of  the  railroad  Senator  from  California,  Mr.  Leland  Stan- 
ford, on  Monday.  Almost  immediately  after  Senator  CuUom  had 
made  a  clear  exposition  of  the  intent  and  meaning  of  the  long-  and 
short-haul  provision,  Mr.  Stanford  based  his  whole  argument  on  an 
utter  perversion  of  its  fair  construction. 

"  Th^essence  of  this  section  is  contained  in  the  following  words  : 
'  It  shall  be  unlawful  for  any  common  carrier  subject  to  the  provi- 
sions of  this  act  to  charge  or  receive  any  greater  compensation  in 
the  aggregate  for  the  transportation  of  passengers  or  of  like  kind  of 
property,  under  substantially  similar  circumstances  and  conditions, 
for  a  shorter  than  for  a  longer  distance  over  the  same  line  in  the  same 
direction,  the  shorter  being  included  in  the  longer  distance.'  As 
Senator  Cullom  said,  the  qualifying  words  and  phrases  are  full  of 
meaning,  and  they  furnish  all  the  elasticity  to  the  provision  that  is 
necessary  to  enable  railroads  to  conform  to  the  requirements -of  suc- 
cessful management.  It  was  at  first  assumed  by  some  of  the  object- 
ors that  this  would  require  the  charges  for  long  distances  to  be  pro- 
portioned to  those  for  shorter  distances.  But  the  expression  '  in  the 
aggregate '  plainly  shows  that  it  applies  only  to  the  total  charge  for 
the  entire  transportation.  The  same  meaning  is  involved  in  the 
prohibition  of  unjust  discrimination  against  localities.  No  one  has 
yet  shown  that  the  obvious  injustice  of  charging  more  for  transporta- 
tion from  a  nearer  point  to  the  same  destination  than  from  a  more 
remote  point,  where  the  circumstances  and  conditions  of  the  traffic 
are  substantially  the  same,  is  justified  on  any  general  principle.  If 
it  is  justified  in  any  case,  it  must  be  due  to  exceptional  circum- 
stances, and  then  the  prohibition  would  not  apply. 

"  It  has  been  claimed  that  this  provision  would  compel  railroads 
either  to  reduce  their  local  rates  or  to  increase  their  through  rates  in 
many  cases  where  it  would  be  disastrous  to  their  interests  and  those 
of  the  communities  which  they  serve.  But  it  lias  nothing  to  do  with 
the  relations  of  through  and  local  charges  in  the  proper  sense  of  the 
terms.      The  circumstances  and  conditions  of  through  and  local  traf- 


42  The  Inter- State  CoTntnerce  Act, 

sections  which  we  have  analyzed,  viz.,  the  first, 
second,  third,  and  fourth,  deal  with  the  question 
of   the  compensation  of  the   common  carrier, 

fie  are  substantially  different.  Under  the  bill  a  railroad  engaged  in 
inter-State  commerce  could  not,  in  fixing  its  local  rates,  discriminate 
against  localities  by  charging  more  for  a  shorter  than  for  a  longer 
distance  for  the  same  kind  of  freight  transported  under  similar  con- 
ditions ;  neither  could  it  make  a  like  discrimination  in  through  rates, 
and  it  is  hard  to  see  why  it  should  be  permitted  to  do  so.  In  almost 
-any  conceivable  case  it  would  be  an  unjust  and  unjustifiable  discrimi- 
nation between  localities. 

"  It  has  been  said  that  the  bill  would  give  an  advantage  to  shorter 
lines  over  longer  ones  between  the  same  points.  But  the  prohibition 
applies  only  to  charges  over  the  same  line,  and  would  not  prevent  a 
long  line  from  putting  its  rates  as  low  as  those  of  a  rival  short  line. 
It  has  also  been  said  that  it  would  force  a  railroad  company  control- 
ling its  own  charges  on  its  own  road  to  conform  them  to  its  share  of 
the  compensation  for  a  long  haul  over  a  line  composed  of  several 
roads.  But  aside  from  the  dissimilar  circumstances  and  conditions 
in  such  cases  the  prohibition  would  only  apply  to  the  one  line  over 
which  the  traffic  was  carried,  of  however  many  different  railroads  it 
might  be  composed. 

"  Again,  it  has  been  claimed  that  the  act  would  prevent  the  reduc- 
tion of  rates  to  meet  the  competition  of  water  routes  which  serve  the 
same  points  as  the  railroads.  But  the  existence  of  such  routes  and 
the  necessity  of  low  rates  to  compete  with  them  and  do  any  business 
to  and  from  the  points  which  they  reach,  would  constitute  such  a 
difference  of  circumstances  and  conditions  that  within  the  require- 
ments of  business  necessity  the  bill  would  undoubtedly  allow  the 
discriminination. 

' '  Much  stress  has  been  laid  upon  the  effect  \\  hich  would  be  produced 
upon  the  grain  interests  of  the  Northwest  and  the  cotton,  iron,  and 
other  interests  of  the  South.  It  is  said  that  in  order  to  bring  our 
great  grain  supplies  to  the  seaboard  and  send  the  surplus  to  foreign 
markets  through  rates  must  be  lower  than  the  railroads  can  afford  for 
intermediate  traffic.     But  suppose  the  circumstances  and  conditions 


The  Inter -State  Co7Jiinerce  Act.  43 

and  the  circumstances  and  method  of  charo-Inc- 

o       o 

and  receiving  the  same. 

By  the  first  section  the  common   carrier  is 

are  substantially  similar — that  is  to  say,  a  carload  or  a  trainload  of 
grain  is  destined  for  the  port  of  New  York,  either  for  the  local  mar- 
ket or  for  shipment  abroad,  what  reason  is  there  why  a  line  of  rail- 
roads bringing  it  here  should  be  allowed  to  charge  less  in  the  aggre- 
gate from  Dakota  than  from  Minnesota,  from  Minnesota  than  from 
Illinois,  from  Illinois  than  from  Ohio  ?  If  it  may  charge  as  much 
for  the  shorter  distance  that  is  certainly  as  large  a  liberty  as  it  can 
reasonably  ask  for.  The  restriction  will  have  nothing  to  do  with 
what  may  be  charged  for  grain  by  the  bushel  or  flour  by  the  barrel 
between  intermediate  points. 

"  Lov,' rates  for  cotton  from  the  South  to  Northern  distributing 
points  are  certainly  an  advantage,  but  it  is  no  advantage  to  the  South 
or  the  North  that  when  it  is  to  be  transported  under  the  same  cir- 
cumstances and  conditions  a  discrimination  should  be  exercised  against 
certain  shipping  points  and  in  favor  of  others  at  a  longer  distance  from 
its  destination.  The  charge  for  transporting  by  the  bale  between 
local  points  would  be  in  no  way  affected.  So,  it  is  said,  the  develop- 
ment of  the  coal  and  iron  interests  of  the  South  depends  on  low  rates 
of  transportation  to  or  beyond  the  Ohio  River.  But  the  bill  would 
certainly  not  interfere  with  such  rates.  They  could  be  made  as  low 
as  the  railroads  could  afford  or  were  willing  to  make  them.  Rates 
for  iron  or  coal  would  not  be  affected  by  those  for  any  other  kind  of 
property.  Coal  or  iron  sent  by  the  trainload  over  through  lines 
would  not  be  affected  by  the  rates  of  transportation  of  the  same  ma- 
terials locally  under  different  circumstances  and  conditions.  Tlie 
simple  fact  would  be  that  the  same  line  taking  coal  or  iron  by  the  car 
or  by  the  train  from  one  point  could  not  charge  more  for  the  same 
service  from  another  point  at  a  greater  distance  from  the  common 
destination,  or  more  from  the  same  point  to  a  nearer  destination  than 
to  one  more  remote,  the  circumstances  and  conditions  of  the  traffic 
being  substantially  similar. 

"  In  short,  we  do  not  see  how  this  prohilMtion  as  to  the  short  and 
long  haul,  fairly  construed  and  judii-iously  apjilied,  can  injure  cither 


44  TJie  Inter- State  CoiuTncrce  Act. 

prohibited  from  charging  any  more  than  a 
reaso7iable  and  just  amount  for  its  services  ;  by 
the  second  section  the  carrier  is  enjoined 
against  tcnjustly  discrnninating  against  any  of 
its  patrons,  by  charging  a  greater  or  less  com- 
pensation for  similar  services — in  other  words, 
its  rates  must  be  uniform,  the  same  to  all, 
without  any  discrimination  ;  by  the  third  sec- 
tion the  carrier  is  prohibited  from  giving  any 
undue  or  unreasonable  preference  to  any  indi- 
vidual, etc.,  or  location,  or  particular  descrip- 
tion of  traffic,  or  subjecting  such  individual, 
etc.,  locality,  or  particular  description  of  traffic, 
to  any  ttndue  or  unreasonable  prejudice  or  dis- 
advantage ;  and  by  the  fourth  section  the  car- 
rier is  prevented  from  charging  a  greater  or  as 
great  a  compensation  for  a  shorter  than  for  a 
longer  haul. 

By  the  foregoing  sections  it  will  be  perceived 
that  Congress  has  not  only  limited  ox  fixed  the 
amount  of  compensation  which  a  common  car- 

the  interests  of  the  railroads,  or  those  of  the  producers  and  shippers, 
or  those  of  the  business  centres  and  seaports  of  the  country.  The 
outcry  raised  against  it  seems  to  have  been  partly  the  result  of  ig- 
norance or  misunderstanding  and  partly  the  outcome  of  an  objection 
of  railroad  managers  to  any  regulation  of  the  liberty  which  they  have 
so  often  abused  to  the  injury  of  the  country  and  even  to  the  proper- 
ties which  they  control."] 


The  Intej'-State  Commei^ce  Act.  45 

rier  may  hereafter  receive,  by  making  it  '*  rea- 
sonable and  just,"  and  leaving  that  question  to 
be  determined  by  the  courts  in  the  ordinary  pro- 
cess of  investigation  ;  but  it  has  laid  down  rules 
which  compel  the  carrier  to  make  its  rates  uni- 
form and  unvarlable,  preventing  all  discrimina- 
tion and  exception,  save  so  far  as  the  Inter-State 
Commerce  Commission  may  prescribe. 

Pools  and  Division  of  Earnings  Prohibited, 

Fourth  :  The  fifth  section  of  the  Act  deals 
with  pools,  and  provides  that  it  shall  be  unlaw- 
ful for  any  common  carrier  subject  to  the  pro- 
visions of  this  Act  to  enter  into  any  con- 
tract ^  agreement,  or  combi7iation  with  any  other 
co7n7no7i  carrier,  or  carriers  for  the  pooling  of 
freights  of  differe^it  a?id  competing  railroads^ 
or  to  divide  betwee7i  them  the  aggregate  or  jict 
proceeds  of  the  earnings  of  such  railroads,  or 
any  portion  thereof ;  and  in  any  case  of  an 
agreement  for  the 'pooling  of  freights  as  afore- 
said, each  day  of  its  continuance  shall  be 
deemed  a  separate  offence. 

It  is  not  within  the  scope  of  this  treatise  to 
discuss  the  very  important  and  difficult  ques- 
tions of  the  policy  or  public  benefit  grow- 
ing   out    of     railroad     frelLrht     pools.       Those 


46  The  Inter- State  Commerce  Act. 

subjects  may  give  rise  to  very  interesting  phil- 
osophical discussions,  but  they  are  not  now- 
germane  because  the  Legislature  has  passed 
upon  them,  and  by  the  section  now  involved 
has  most  emphatically  condemned  all  railroad 
''freight  pools";  nay,  more,  it  has  prohibited 
the  division  of  the  aggregate  or  net  proceeds 
of  the  earnings  of  different  and  competing  rail- 
roads, or  any  portion  thereof. 

Co7nbinatzo7is  not  to  Make  Carriage  of  Freight 
Continuotis,  Prohibited, 

Fifth  :  The  seventh  section  provides  that  it 
shall  be  unlawful  for  any  common  carrier  sub- 
ject to  the  provisions  of  this  Act  to  enter  into 
any  combination,  contract,  or  agreement,  ex- 
pressed or  implied,  to  prevent,  by  change  of 
time-schedule,  carriage  in  different  cars,  or  by 
other  means  or  devices,  the  carriage  of  freights 
from  being  C07itintW2cs  from  the  place  of  ship- 
7nent  to  the  place  of  destination  ;  and  no  break 
of  bulk,  stoppage,  or  interruption  made  by 
such  common  carrier  shall  prevent  the  carriage 
of  freights  from  being  and  being  treated  as 
one  continuous  carriage  from  the  place  of  ship- 
ment to  the  place  of  destination,  unless  such 
break,  or  stoppage,  or  interruption  was  made 


TJie  litter- State  Commerce  Act.  47- 

in  good  faith  for  some  necessary  purpose,  and 
without  any  intent  to  avoid  or  unnecessarily 
interrupt  such  continuous  carriage  or  to  evade 
any  of  the  provisions  of  this  Act. 

This  section  was  evidently  passed  and  should 
be  read  in  connection  with  the  first  four  sec- 
tions of  the  law,  and  especially  of  the  third 
section,  and  properly  comes  after  the  fourth 
section,  which  relates  to  the  short  haul. 

Exceptions  fro77i  Operations  of  the  Act. 

Sixth  :  By  the  twenty-second  section  of  the 
Act  it  is  provided  :  That  nothing  in  this  Act 
shall  apply  to  : 

1st.  The  carriage,  storage,  or  handling  of 
property  free  or  at  reduced  rates  for  the  United 
States,  State,  or  municipal  governments, 

2d.   Or  for  charitable  purposes, 

3d.  Or  to  or  from  fairs  and  expositions  for 
exhibition  thereat, 

4th.  Or  the  issuance  of  mileage,  excursion, 
or  commutation  passenger  tickets  ; 

5th.  Nothing  in  this  Act  shall  be  construed 
to  prohibit  any  common  carrier  from  giving  re- 
duced rates  to  ministers  of  religion, 

6th.  Or  to  prevent  railroads  from  giving  free 
carriage  to  their  own  officers  and  employees. 


48  The  Inter- State  Co77t7nerce  Act. 

7th.  Or  to  prevent  the  principal  officers  of 
any  railroad  company  or  companies  from  ex- 
changing passes  or  tickets  with  other  railroad 
companies  for  their  officers  and  employees  ; 

8th.  And  nothing  in  this  Act  contained  shall 
in  any  way  abridge  or  alter  the  remedies  now 
existing  at  common  law  or  by  statute,  but  the 
provisions  of  this  Act  are  in  addition  to  such 
remedies.  Provided  that  no  pending  litigation 
shall  in  any  way  be  affected  by  this  Act.     (Sec. 

-22.) 


CHAPTER  V. 

DUTY  OF  COMMON  CARRIERS  TO  PREPARE,  PRINT, 
AND  PUBLISH  SCHEDULES  OF  RATES,  FARES, 
AND    CHARGES. 

■Schedules  of  Freight  Rates  and  Passenger  Fares ^ 
How  to  be  Kept. 

THE  sixth  section  of  the  Act  deals  with  the 
very  important  subject  of  schedules, 
which  the  common  carriers,  subject  to  its  pro- 
visions, are  enjoined  to  keep  for  the  use  of  the 
public. 

By  this  clause  it  will  be  seen  that  the  com- 
mon carriers  are  charged  with  the  following 
duties. 

Preparing  Schedtdes, 

I.  Of  printing  and  keeping  for  public  inspec- 
tion schedules. 

n.  These  schedules  must  show  the  rates 
and  fares  and  charges  for  transportation  of 
passengers  and    property   which    such    carrier 

49 


50  The  Liter- State  Co^nmerce  Act, 

has  established,  and  which  are  hi  force  at  the- 
time  upon  its  railroad,  as  defined  by  the  first 
section  of  the  Act. 

III.  These  printed  schedules  shall  plainly 
state  : 

1st.  The  places  upon  its  railroad  between 
which  property  and  passengers  will  be  carried. 

2d.  The  classificatiofi  of  freight  in  force  upon 
such  railroad. 

3d.  Shall  also  state  separately  the  terminal 
charges, 

4th.  Any  r2iles  or  ^regulations  which  in  a?iy 
wise  change,  affect,  or  determine  any  part  of 
the  aggregate  of  such  aforesaid  rates,  fares,  and 
charges. 

IV.  The  schedules  to  be  plainly  printed  in 
large  type  of  at  least  the  size  of  ordinary /^V^. 

V.  Copies  for  the  use  of  the  public  shall  be 
kept  in  every  depot  or  station  upon  any  sucli 
railroad,  in  such  places  and  in  such  form  that 
they  can  be  conveniently  inspected. 

In  addition  to  the  above,  common  carriers 
receiving  freight  in  the  United  States  to  be 
carried  through  a  foreign  country  to  any  place 
in  the  United  States  shall  also, 

VI.  Print  and  keep  for  public  inspection,  at 
every  depot  where  such  freight  is  received  for 


TJic  Liter-  State  Commerce  Act.  5 1 

shzpme7it,  schedules  showing  the  through  rates 
established  and  charged  by  such  common  car- 
rier to  all  points  in  the  Uizited  States  beyond 
the  foreig7i  cou7ttry  to  which  it  accepts  freight 
for  shipment. 

Freight  shipped  as  above,  the  through  rate 
on  which  shall  not  have  been  made  public, 
shall  be  subject  to  customs  duties,  as  if  said 
freight  were  of  foreign  production.      (Sec.  6.) 

Advances  in  Rates. 

The  section  then  deals  with  advance  in  rates, 
etc.,  and  provides  : 

I.  That  no  advance  in  the  rates,  fares,  and 
charges  shall  be  made  except  after  ten  days 
public  7iotice.      (Sec.  6.) 

II.  This  public  notice  shall  state  as  fol- 
lows : 

1st.  The  changes  proposed  to  be  made  in  the 
schedules  then  in  force. 

2d.  The  time  when  the  increased  rates,  fares, 
or  charores  will  iro  into  effect. 

III.  These  proposed  changes  shall  be 
shown  by  printing  new  schedules,  or  shall  be 
plainly  indicated  upon  the  schedules  i 71  force  at 
the  tir7ie  and  kept  iox pitblic  inspection. 


52  TJic  Inter- State  Commerce  Act, 

Reduction  in  Rates, 

Reduction  in  published  rates,  fares,  or  charges 
may  be  made  withoitt  previous  public  notice^ 
viz.  : 

I.  Notice  of  the  reduction  shall  immedi- 
ately be  ptiblicly  posted. 

II.  The  changes  made  shall  immediately 
be  made  public  by  printing  new  schedules  ;  or, 

III.  Shall  immediately  be  plainly  indicated 
upon  the  schedules  at  the  time  in  force. 

Carrier  not  to  Charge,  Demand,  Collect,  or  Re- 
ceive Greater  or  Less  Compensation  than 
Published  Rates, 

It  shall  be  unlawful  for  the  carrier  to  charge, 
demand,  collect,  or  receive  a  greater  or  less 
compensation  for  the  transportation  of  passen- 
gers or  property,  or  for  any  services  in  connec- 
tion therewith,  than  is  specified  in  such  pub- 
lished schedules  then  in  force. 

Filijig  Schedules,    Contracts,  etc,  with  Commis- 
sion, 

The  carrier  must  file  with  the  Commission 
(within  what  time  is  not  specified,  but  the  in- 


The  Inter-  State  Commerce  Act,  53 

tention  seems  to   be   that   It   should  be    done 
immediately). 

I.  Copies  (how  many  not  stated)  of  its 
schedules  of  rates,  fares,  and  charges  established 
and  published. 

II.  Shall  prornptly  notify  said  Commission 
of  all  cha7iges  made  iji  the  saTne. 

III.  Every  carrier  shall  also  fie  with 
the  Commission  copies  of  all  contracts,  agree- 
ments, or  arrangements  with  other  common 
carriers  in  relation  to  any  traffic  affected  by 
the  provisions  of  the  Act  to  which  it  may  be  a 
party. 

IV.  In  cases  where  passengers  and  freight 
pass  over  continuous  lines  or  routes  oper- 
ated by  more  than  one  common  carrier, 
and  the  several  common  carriers  operating 
such  lines  or  routes  establish  joint  tariffs  of 
rates,  or  fares,  or  charges  for  such  continuous 
lines  or  routes,  copies  of  such  joint  tariffs 
shall  also,  in  like  manner,  be  fled  with  said 
Commission. 

Publishing  Joint  Rates,  Fares,  aiid  Charges. 

Such  joint  rates,  fares,  and  charges  on  such 
continuous  lines  so  filed  as  aforesaid,  shall  be 
rcididQ  public  by  the  carriers — 


54  T^Ji^  Inter- State  Commerce  Act. 

I.  When  directed  by  the  CommisstoUy  in  so 
far  as  may,  In  the  judgment  of  the  Commis- 
sion, be  deemed  practicable. 

II.  And  the  Commission  shall  from  time 
to  time  prescribe  the  meastcre  of  ptcblicity 
which  shall  be  given  to  such  rates,  fares,  and 
charges,  or  to  such  part  of  them  as  it  may 
deem  it  practicable  for  such  common  carriers  to 
publish,  and  the  places  in  which  they  shall  be 

published. 

III.  No  common  carrier,  party  to  a  joint 
tariff,  shall  be  liable  for  the  failure  of  any  other 
carrier,  party  thereto,  to  observe  and  adhere 
to  the  rates,  fares,  or  charges  thus  made  and 
published.      (Sec.  6.) 

Remedies  against  Carrier  for  Refusing  or 
Neglecting  to  File  and  Publish  Schedules  or 
Tariffs. 

In  addition  to  the  penalties  prescribed  in  the 
eighth,  ninth,  and  tenth  sections  of  this  Act,  if 
the  carrier  shall  neglect  or  refuse  to  file  ox  pub- 
lish its  schedules  or  tariffs  of  rates,  fares,  and 
charges,  or  any  part  of  the  same,  such  carrier 
shall  be  subject  to  a  writ  of  mandamus — 

I.  To  be  issued  by  any  Circuit  Court 
of  the  United  States  in  the  jtidicial  distinct 
7vherein  iJie  principal  office  of  said  common  car- 


The  hiter- State  Couimcj-cc  Act.  55 

rier  is  situated ^  or  wherever  such  offe7ice  may  be 
committed. 

II.  And  if  such  common  carrier  be  2^  foreign 
corporation,  in  the  judicial  circuit  wherein  such 
common  carrier  accepts  traffic,  and  has  a7t  agent 
to  perform  such  service,  to  compel  compliance 
with  the  aforesaid  provisions  of  this  section. 

III.  Such  writ  shall  issue  in  the  name  of 
the  people  of  the  United  States  at  the  relation  of 
the  Commissio7ters  appointed. 

IV.  Failure  to  comply  with  its  requirements 
shall  be  punishable  as  and  for  a  contempt. 

V.  The  Commissioners,  as  complainants, 
may  also  apply,  in  any  sucJi  Circuit  Court 
of  the  United  States,  for  a  writ  of  injunction 
against,  and  to  restrain  such  carrieryr^;;/  receiv- 
ing or  traiisporting  property,  within  the  places 
mentioned  in  the  first  section  of  the  Act,  2cntil 
such  common  carrier  shall  have  co7nplied  with  the 
aforesaid  provisions  of  this  sectioii  of  the  Act. 
(Sec.  6.) 

Comments  on  Sixth  Section. 

It  will  be  observed  by  a  careful  reading  of 
this  important  section  of  the  Inter-State  Com- 
merce Act,  that  the  most  stringent  provisions 
are  made  for  the  preparation,  publication,  and 
filing  of  schedules,  showing  the  rates,  fares,  and 


56  The  Inter- State  Commerce  Act. 

charges  to  be  made  by  the  carrier,  for  the 
transportation  of  passengers  and  property  upon 
separate,  or  joint,  or  continuous  roads.  Not 
only  that,  but  such  carriers  are  compelled  to 
file  all  joint-traffic  agreements  with  the  Inter- 
State  Commerce  Commission. 

A  failure  to  do  all  or  either  of  these  require- 
ments subjects  the  offending  carrier  to  an  in- 
dictment for  misdemeanor  ;  the  carrier  may 
also  be  enforced  to  perform  its  duties  by  the 
writ  of  mandamus  ;  and  it  may  be  restrained 
by  injunction  from  transacting  all  of  its  business 
in  the  transportatiofi  of  property,  as  mentioned 
in  the  first  section  of  the  Act,  until  it  complies 
with  the  law. 

It  will  also  be  observed  that  the  jurisdiction 
of  the  Circuit  Courts  of  the  United  States  is 
enlarged  for  the  purposes  of  the  Act,  and  that  a 
writ  of  mandamus  may  be  issued  against  the 
carrier,  not  only  in  the  judicial  district  ''  wherein 
the  principal  office  of  said  common  carrier  is 
situated,"  but  in  the  district  wherein  S2ich 
offence  may  be  committed. 

If  the  common  carrier  be  a  foreign  corpora- 
tion, ''  in  the  judicial  circuit  wherein  such  com- 
mon carrier  accepts  traffic,  and  has  an  agent  to 
perform  such  service." 

Reading  this  section  in  connection  with  the 


The  Inter- State  Commerce  Act.  57" 

other  parts  of  the  law,  it  is  obvious  that  here- 
after the  entire  business  of  a  carrier  is  in  the 
hands  of  the  pubHc.  The  charges  of  the  com- 
mon carrier  are  not  only  fixed  in  advance  by 
placing  it  in  the  power  of  a  jury  to  specify 
what  they  shall  be — ''  reasonable  and  just," — but 
the  carrier  is  compelled  to  print  and  publish 
them,  with  every  detail,  to  expose  its  joint 
agreements  with  other  roads,  and  to  refrain 
from  increasing  its  rates,  no  matter  what  the 
special  circumstances  may  be,  until  it  has  given, 
in  due  form,  a  previous  notice  of  ten  days. 

No  other  business  or  occupation  has  ever 
been  subjected  to  such  an  extraordinary  control 
and  espionage.  But  the  whole  issue  is  nar- 
rowed down  to  this  proposition,  viz.  :  Does 
this  Act,  in  all  of  its  parts,  and  considered 
as  a  whole,  constitute  a  regulation  of  commerce 
by  Congress  ?     If  so,  it  is  a  valid  act. 

But  if  !t  be  shown  that  the  effect  of  an  act 
is  not  to  regulate  but  to  destroy  commerce, 
not  to  regulate  but  to  interfere  with  commerce, 
to  hamper  or  retard  its  growth,  have  the 
courts  of  the  United  States  the  power  to  inter- 
fere ?  Have  they  the  power  to  limit  the  legis- 
lative control  of  the  subject  ? 


CHAPTER  VI. 

PENALTIES    AND     REMEDIES    FOR    VIOLATING  ACT. 

THE  general  penalties  of  the  Act  are  con- 
tained in  the  eighth,  ninth,  and  tenth 
sections,  but  there  are  other  special  penalties 
provided  for  in  the  other  sections,  which  we 
shall  briefly  allude  to  in  this  connection. 

First :  Section  8  provides  that  in  case  any 
common  carrier  subject  to  the  provisions  of 
this  Act  shall  do,  cause  to  be  done,  or  permit 
to  be  done  any  act,  matter,  or  thing  in  this  Act 
prohibited  or  declared  to  be  unlawful,  or  shall 
omit  to  do  any  act,  matter,  or  thing  in  this  Act 
required  to  be  done,  such  common  carrier  shall 
be  liable  to  the  person  or  persons  injured  there- 
by for  the  full  amount  of  damages  sustained  in 
consequence  of  any  such  violation  of  the  pro- 
visions of  this  Act,  together  with  a  reasonable 
counsel  or  attorney's  fee,  to  be  fixed  by  the 
court  in  every  case  of  recovery,  which  attor- 
ney's fee  shall  be  taxed  and  collected  as  part  of 
the  costs  in  this  case. 

Second  :  Sec.  9 — That  any  person  or  persons 

5S 


The  Inter- State  Conivterce  Act.  59 

•claiming  to  be  damaged  by  any  common  carrier 
subject  to  the  provisions  of  this  Act  may  eitJier 
make  complaint  to  tJie  Commission  as  herein- 
after provided  for,  or  may  bring  suit  in  his  or 
their  ow7i  behalf  for  the  recovery  of  the  dam- 
ages for  which  such  common  carrier  may  be 
Hable  under  the  provisions  of  this  Act  in  any 
District  or  Circuit  Court  of  the  United  States 
of  competent  jurisdiction  ;  but  such  person  or 
persons  shall  not  have  the  right  to  pursue  both 
of  said  remedies,  and  must  in  each  case  elect 
which  one  of  the  two  methods  of  procedure  herein 
provided  for  he  or  they  will  adopt.  In  any  such 
action  brought  for  the  recovery  of  damages 
the  court  before  which  the  same  shall  be  pend- 
ing may  compel  any  director,  officer,  receiver, 
trustee,  or  agent  of  the  corporation  or  com- 
pany defendant  In  such  suit  to  attend,  appear, 
and  testify  In  such  case,  and  may  compel  the 
production  of  the  books  and  papers  of  such 
corporation  or  company  party  to  any  such  suit ; 
the  claim  that  any  such  testimony  or  evidence 
may  tend  to  criminate  the  person  giving  such 
evidence  shall  not  excuse  such  witness  from 
testifying,  but  such  evidence  or  testimony 
shall  not  be  used  against  such  person  on  tlie 
trial  of  any  criminal  i)roceeding. 


6o  The  Inter- State  Commerce  Act. 

Third  :  Sec.  lo. — That  any  common  carrier 
subject  to  the  provisions  of  this  Act,  or,  when- 
ever such  common  carrier  is  a  corporation, 
any  director  or  officer  thereof,  or  any  receiver, 
trustee,  lessee,  agent,  or  person  acting  for  or 
employed  by  such  corporation,  who,  alone  or 
with  any  other  corporation,  company,  person, 
or  party,  shall  wilfully  do  or  cause  to  be  done, 
or  shall  willingly  suffer  or  permit  to  be  done, 
any  act,  matter,  or  thing  in  this  Act  prohibited 
or  declared  to  be  unlawful,  or  who  shall  aid  or 
abet  therein,  or  shall  wilfully  omit  or  fail  to  do 
any  act,  matter,  or  thing  in  this  Act  required 
to  be  done,  or  shall  cause  or  willingly  suffer  or 
permit  any  act,  matter,  or  thing  so  directed  or 
required  by  this  Act  to  be  done  not  to  be  so 
done,  or  shall  aid  or  abet  any  such  omission  or 
failure,  or  shall  be  guilty  of  any  infraction  of 
this  Act,  or  shall  aid  or  abet  therein,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall, 
upon  conviction  thereof  in  any  District  Court 
of  the  United  States  within  the  jurisdiction  of 
which  such  offence  was  committed,  be  subject 
to  a  fine  not  to  exceed  five  thousand  dollars 
for  each  offence. 

To  these  penalties  must  be  added  some 
others,    as   follows  : 


The  Inter- State  Commerce  Act,  6i 

Fourth  :  Each  day's  continuance  of  an  agree- 
ment between  carriers  to  pool  freight  shall  be 
deemed  a  separate  offence.     (Sec.  5.) 

Fifth  :  Where  a  common  carrier,  receiving 
freight  in  the  United  States  to  be  carried 
through  a  foreign  country,  fails  to  print  and 
keep  for  public  inspection  at  the  depot  where 
such  freight  is  received  for  shipment,  schedules 
showing  the  through  rates,  such  freight  shall, 
before  it  is  admitted  into  the  United  States 
from  such  foreign  country,  be  subject  to  cus- 
toms duties.      (Sec.  6.) 

Sixth  :  A  failure  to  comply  with  the  writ  of 
mandamus  issued  to  compel  the  performance  of 
duties  devolved  on  carrier  by  the  sixth  section, 
shall   be  punishable   as   and    for    a    contempt. 
(Sec.   6.) 

Seventh  :  A  failure  to  obey  an  order  of  the 
Circuit  Court  of  the  United  States,  requiring  a 
carrier  to  appear  before  the  Commission  (and 
produce  books  if  ordered)  and  give  evidence, 
may  be  punished  by  the  court  as  a  contempt, 
(Sec.  12.) 

Eighth  \  If  It  be  made  to  appear  to  the   Cir- 


62  The  Inter- State  Coninierce  Act. 

cuit  Court,  that  the  lawful  order  or  require- 
ment of  the  Commission  drawn  in  question 
has  been  violated  or  disobeyed,  it  shall  be  law- 
ful for  such  court  to  issue  a  writ  of  injunction 
or  other  proper  process,  mandatory  or  other- 
wise, to  restrain  such  common  carrier  from 
further  continuing  such  violation  or  disobedi- 
ence of  such  order  or  requirement  of  said 
Commission,  and  enjoining  obedience  to  the 
same  ;  and  in  case  of  any  disobedience  of  any 
such  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise,  it  shall  be  lawful  for 
such  court  to  issue  writs  of  attachment,  or  any 
other  process  incident  to  writs  of  injunction, 
against  such  common  carrier,  or  persons  fail- 
ing to  obey  such  writ  or  process  ;  and  said 
court  may  make  an  order  directing  such 
common  carrier,  or  other  person,  so  dis- 
obeying such  writ  of  injunction  or  other  pro- 
cess, to  pay  a  sum  of  money  not  exceeding  for 
each  carrier  or  person  in  default  the  sum  of  five 
hundred  dollars  for  every  day  after  a  day  to  be 
named  in  the  order  that  such  carrier  or  other 
person  shall  fail  to  obey  such  injunction  or 
other  process.  Such  money  shall  be  payable 
as  the  court  shall  direct,  either  to  the  party 
complaining,  or  into  court,  or  into  the  treasury; 


The  Inter- State  Commerce  Act.  63 

and  payment  thereof  may,  without  prejudice  to 
any  other  mode  of  recovering  the  same,  be  en- 
forced by  attachment  or  order  in  the  nature  of 
a  writ  of  execution,  in  Hke  manner  as  if  the 
same  had  been  recovered  by  a  final  decree  in 
personam  in  such  court.     (Sec.  16.) 

Ninth  :  Lastly,  it  is  provided  that  nothing 
in  this  Act  contained  shall  in  any  way  abridge 
or  alter  the  remedies  now  existing  at  com77ton 
law  or  by  statute,  but  the  provisions  of  this  Act 
are  in  addition  to  such  remedies  :  provided  that 
no  pending  litigation  shall  in  any  way  be  affected 
by  this  Act.     (Sec.  22.) 

Comments  upon  above  Sections, 

It  will  thus  be  seen  that  the  Act  prescribes 
a  full  measure  of  remedies  and  penalties  for 
a  violation  of  its  provisions,  or  any  part 
thereof. 

We  shall   separate  and  briefly    recapitulate 

them. 

Criminal  Remedy. 

Under  the  tenth  section  of  the  Act  an 
indictment  lies  in  the  following  instances  : 

First  :  Against  any  commoii  carrier  subject 
to  the  provisions  of  this  Act,  who,  alone  or  with 


64  The  Inter- State  Commerce  Act. 

any  other  corporation,  company,  person,  or 
party,  shall  wilfully  do  any  matter  or  thing,  etc., 
prohibited  by  the  act,  etc.,  etc.,  as  enumerated 
in  the  said  section. 

Second  :  Whenever  such  common  carrter  is 
a  corporation,  against  any  director  or  officer 
thereof,  or  any  receiver,  tricstee,  lessee,  agent,  or 
person  acting  for  or  ei7tployed  by  such  corporation, 
who,  alone  or  with  any  other  corporation,  com- 
pany, person,  or  party,  shall  wilfully  do,  any 
matter  or  thing  prohibited  by  the  said  Act,  etc., 
etc.,  as  enumerated  in  said  section. 

This  criminal  remedy  would  be  invoked  in 
the  District  Court  by  indictment,  precisely  the 
same  as  it  would  be  for  the  infraction  of  any 
other  offence  against  the  United  States. 

Civil  Remedies  for  Party  Injured, 

The  Act  provides  two  distinct  forms  of 
remedy  for  any  party  injured  by  the  failure  of 
a  common  carrier  to  comply  with  the  terms  of 
the  Act. 

First :  The  person  or  persons  injured  may 
bring  suit  in  his  or  their  own  behalf  for  the  re- 
covery of  damages  in  any  District  or  Circuit 
Court  of  the  United  States  of  competent  juris- 
diction.    (Sees.  8  and  9.) 


The  Inter- State  Commerce  Act,  65 

Second  :  Or,  such  person  or  persons  may 
make  complaint  to  the  Commission,  following 
the  forms  and  practice  enumerated  in  Sec.  13, 
£t  seq.      (Sec.  9.) 

But  such  person  shall  not  have  the  right 
to  pursue  both  of  said  remedies,  and  must 
in  each  case  elect  which  one  of  the  two 
methods  of  procedure  herein  provided  he  or 
they  will  adopt.     (Sec.  9.) 

Keviedies    of    Co77iplainants   whether    Da7naged 

or  7iot, 

There  are  three  classes  of  complainants  who 
may  institute  proceedings  against  common 
carriers  without  alleging  any  injury  or  damage. 

First,  Any  person,  firm,  corporation,  or  as- 
sociation, or  any  mercantile,  agricultural,  or 
manufacturing  society,  or  any  body  politic  or 
municipal  organization,  complaining  of  any  thing 
done  or  omitted  to  be  done  by  any  common  car- 
rier, subject  to  the  provisions  of  this  Act  in 
contravention  of  the  provisions  thereof,  may 
apply  to  said  Commission  by  petition,  etc. 
(Sec.  13.) 

Second.  Said  Commission  shall,  in  like  man- 
ner, investigate  any  covci'^X^AViX,  foi^cvardcd  by  the 
Railroad  Commissioner,   or  Railroad  Commis- 


66  The  Inter- State  Comrfierce  Act. 

sion  of  any  State  or  territory,  at  the  request 
of  such  Commissioner  or  Commission.  (Sec.  13.) 

Third.  And  said  Commission  may  insti- 
tute any  inquiry  07i  its  own  -motioji  in  the  same 
manner  and  to  the  same  effect  as  though  complai^it 
had  bee7i  made.     (Sec.  13.) 

No  complaint  shall  at  any  time  be  dismissed 
because  of  the  absence  of  direct  damage  to 
the  complainant.     (Sec.  13.) 


CHAPTER  VII. 

THE    INTER-STATE    COMMERCE    COMMISSION. 

WE  now  come  to  consider  the  most  im- 
portant portion  of  the  Inter-State 
Commerce  Act,  which  relates  to  the  creation 
of  the  Commission,  and  its  general  functions 
and  powers,  as  contained  between  the  eleventh 
and  the  twenty-fourth  sections  of  the  Act  in- 
clusive. 

Title  of  Commission. 

The  Commission  is  to  be  known  as  the 
**  Inter-State  Commerce   Commission."     (Sec. 

II.) 

JVumber    of    Co77zmissioners    and    Manricr    of 

Appointment, 

It  shall  be  composed  of  five  Commissioners, 
who  shall  be  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate. 
(Sec.  IT.) 

67 


68  The  Inter- State  Coirimerce  Act. 

Term  of  Office. 

The  Commissioners  first  appointed  under 
this  Act  shall  continue  in  office  for  the  term  of 
two,  three,  four,  five,  and  six  years,  respect- 
ively, from  the  first  day  of  January,  1887,  the 
term  of  each  to  be  designated  by  the  Presi- 
dent ;  but  their  successors  shall  be  appointed 
for  terms  of  six  years,  except  that  any  per- 
son chosen  to  fill  a  vacancy,  shall  be  appointed 
only  for  the  unexpired  term  of  the  Com- 
missioner whom  he  shall  succeed,      (Sec.  11.) 

Removal, 

Any  Commissioner  may  be  removed  by  the 
President  for  inefficiency,  neglect  of  duty, 
or  malfeasance  in  office.     (Sec.  11.) 

Folitical  Complexion  and  Qualification  of  Com- 
missioners, 

Not  more  than  three  of  the  Commissioners 
shall  be  appointed  from  the  same  political 
party.  No  person  in  the  employ  of  or  holding 
any  official  relation  to  any  common  carrier  sub- 
ject to  the  provisions  of  this  Act,  or  owning 
stock  or  bonds  thereof,  or  who  is  in  any  man- 
ner pecuniarily  interested  therein,  shall  enter 
upon  the  duties  of  or  hold  such  office.      Said 


TJie  Inter- State  Commerce  Act.  69 

Commissioners  shall  not  engage  in  any  other 
business,  vocation,  or  employment.  No  va- 
cancy in  the  Commission  shall  impair  the  right 
of  the  remaininof  Commissioners  to  exercise  all 
the  powers  of  the  Commission.      (Sec.  11.) 

Powers  of  Commission. 

The  Commission  hereby  created  shall  have 
authority  : 

First  :  To  enquire  into  tJie  i7ianagement  of 
the  business  of  all  common  carriers  subject  to 
the  provisions  of  this  Act.      (Sec.  12.) 

Second  :  Shall  keep  itself  informed  as  to 
the  manner  and  method  in  which  the  same  is 
conducted.     (Sec.  12.) 

Third  :  Shall  have  the  rigJit  to  obtain  from 
such  common  carriers  fidl  and  coinplete  informa- 
tion necessary  to  enable  the  Commission  to  perform 
the  duties  and  carry  out  the  objects  for  which  it 
was  created.     (Sec.  12.) 

Fourth  :  And  for  the  purposes  of  the  Act 
the  Commission  shall  have  power  to  rcqiiirc  the 
atteridance  and  testimony  of  witnesses  and  the 
production  of  all  books,  papers,  tariffs,  contracts^ 
agreements,  and  docume^ds  relating  to  any  mat- 
ter under  investigation.     (Sec.  12.) 

Fifth  :  And  to  that  end,  may  iiivoke  the  aid 


70  The  Liter- State  Commerce  Act. 

of  any  court  of  the  United  States,  in  requiring* 
the  attendance  and  testimony  of  witnesses  and  the 
production  of  books,  papers,  and  docuTnents  under 
the  provisions  of  this  section.     (Sec.  12.) 

And  any  of  the  Circuit  Courts  of  the  United 
States  within  the  jurisdiction  of  which  such  en- 
quiry is  carried  on  may,  in  case  of  contumacy 
or  refusal  to  obey  a  subpcena  issued  to  any 
common  carrier  subject  to  the  provisions  of 
this  Act,  or  other  person,  issue  an  order  re- 
quiring such  common  carrier  or  other  person  to 
appear  before  said  Commission  (and  produce 
books  and  papers  if  so  ordered)  and  give  evi- 
dence touching  the  matter  in  question  ;  and 
any  failure  to  obey  such  order  of  the  court 
may  be  punished  by  such  court  as  a  contempt 
thereof.  The  claim  that  any  such  testimony  or 
evidence  may  tend  to  criminate  the  person  giv- 
ing such  evidence  shall  not  excuse  such  witness 
from  testifying  ;  but  such  evidence  or  testi- 
mony shall  not  be  used  against  such  person  on 
the  trial  of  any  criminal  proceeding.     (Sec.  12.) 

Sixth  :  By  the  last  paragraph  of  Section  19 
it  is  provided  : 

*'  It  (the  Commission)  may,  by  one  or  more 
of  the  Commissioners,  prosecute  any  enquiry 
necessary   to    its   duties,    in    any    part    of   the 


The  Inter- State  Co7itmerce  Act.  yi 

United  States,  into  any  matter  or  question  of 
fact  pertaining  to  the  business  of  any  common 
carrier  subject  to  the  provisions  of  this  Act. 

Seventh  :  By  the  20th  section  of  the  Act 
the  Commission  is  authorized  : 

(a)  To  require  annual  reports  from  all  com- 
mon carriers  subject  to  the  provisions  of  this 
Act. 

(^)  To  fix  the  time  and  prescribe  the  man- 
ner in  which  such  reports  shall  be  made. 

(c)  To  require  from  such  carriers  specific 
answers  to  all  questions  upon  which  the  Com- 
mission may  need  inforinatio7i. 

(d)  Such  annual  reports  shall  show  in  de- 
tail : 

(i)   The  amount  of  the  capital  stock  issued. 

(2)  The  amounts  paid  therefor. 

(3)  The  manner  of  payment  for  the  same. 

(4)  The  dividends  paid. 

(5)  The  surplus  fund,  if  any. 

(6)  The  number  of  stockholders. 

(7)  The  funded  and  floating  debts,  and  the 
interest  paid  thereon. 

(8)  The  cost  and  value  of  the  carrier's  prop- 
erty, franchises,  and  equipment. 

(9)  The  number  of  employees  and  the  sala- 
ries paid  each  class. 


72  The  Inter- State  Comme^^ce  Act, 

(lo)  The  amounts  expended  for  improve- 
ments each  year,  how  expanded,  and  the  char- 
acter of  such  improvements. 

(ii)  The  earnings  and  receipts  from  each 
branch  of  business  and  from  all  sources. 

(12)  The  operating  and  other  expenses. 

(13)  The  balances  of  profit  and  loss. 

(14)  And  a  complete  exhibit  of  the  financial 
operations  of  the  carrier  each  year,  including 
an  annual  balance-sheet. 

(15)  Such  reports  shall  also  contain  such 
information  in  relation  to  rates  or  regfula- 
tions  concerning  fares  or  freights,  or  agree- 
ments, arrangements,  or  contracts  with  other 
common  carriers,  as  the  Commission  may 
require. 

{c)  The  said  Commission  may,  within  its 
discretion,  for  the  purpose  of  enabling  it  the 
better  to  carry  out  the  purposes  of  this  Act,, 
prescribe  (if  in  the  opinion  of  the  Commission 
it  is  practicable  to  prescribe  such  uniformity 
and  methods  of  keeping  accounts)  a  period  of 
time  within  which  all  common  carriers  subject 
to  the  provisions  of  this  Act  shall  have,  as  near 
as  may  be,  a  uniform  system  of  accounts,  and 
the  manner  in  which  such  accounts  shall  be 
kept.     (Sec.  20.) 


The  Inter- State  Com77ierce  Act.  jt^ 

Rules  of,  a?td  Practice  before,   Commission. 

First  :  That  the  Commission  may  conduct 
its  proceedings  in  such  manner  as  will  best  con- 
duce to  the  proper  despatcJi  of  business,  and  to  the 
ends  of  justice.      (Sec.  17.) 

Second  :  A  majority  of  the  Commission 
shall  constitute  a  quorum  for  the  transaction  of 
business,  but  no  Commissioner  shall  participate 
in  any  hearing  or  proceeding  in  which  he  has 
any  pecuniary  interest.      (Sec.  i  7.) 

Third  :  Said  Commission  may,  from  time  to 
time,  make  or  amend  such  ge7ieral  rules  or  or- 
ders as  may  be  requisite  for  the  order  and  regu- 
lation of  proceedings  before  it,  including y^r^z/i* 
of  notices  and  the  service  thereof,  which  shall 
conform,  as  nearly  as  may  be,  to  those  in  use 
in  the  courts  of  the  United  States.     (Sec.  17.) 

Fourth  :  Any  party  may  appear  before  said 
Commission  and  be  heard,  in  person  or  by  at- 
torney.     (Sec.  1 7.) 

Fifth  :  Every  vote  and  official  act  of  the 
Commission  shall  be  entered  of  record,  and  its 
proceedings  shall  be  public  upon  the  request  of 
either  party  interested.      (Sec.  17.) 

Sixth  :  Said  Commission  shall  have  an  offi- 
cial seal,  which  shall  be  judicially  noticed. 
(Sec.  I  7.) 


74  The  Inter-Slate  Commerce  Act. 

Seventh :  Either  of  the  vtembers  of  the 
Commission  may  administer  oaths  and  affirm^a- 
tions.     (Sec.  i  7.) 

MetJiod  of  Procedure  befoi^e  Commissio7t, 

The  method  of  procedure  before  the  Com- 
mission is  laid  down  in  the  13th  and  subsequent 
sections  of  the  Act,  with  great  detail,  and  we 
proceed  to  unfold  each  distinct  step  in  the  prog- 
ress of  an  investigation  before  that  body,  from 
the  presentation  of  the  petition  to  the  final 
judgment  of  the  Circuit  Court — ^where  that  be- 
comes necessary. 

Who  May  Make  Complaint. 

First :  Any  person,  firm,  corporation,  or  as- 
sociation, or  any  mercantile,  agricultural,  or 
manufacturing  society,  or  any  body  politic  or 
municipal  organization  complaining  of  any 
thing  done  or  omitted  to  be  done  by  any  corn- 
mon  carrier  subject  to  the  provisions  of  this 
Act  in  contravention  of  the  provisions  thereof. 
(Sec.  13). 

Second  :  Said  Commission  shall  in  like  man- 
ner investigate  any  complaint  forwarded  by  the 
Railroad  Commissioner  or  Railroad  Commis- 
sion of  any  State  or  territory,  at  the  request  of 
.such  Commissioner  or  Commission.    (Sec.  13.) 


The  I7ite7'-State  Co7n7nerce  Act.  75 

Third  :  Said  Commission  may  institute  any 
enquiry  on  its  own  motion  in  the  same  manner 
and  to  the  same  effect  as  though  complaint  had 
been  made.     (Sec.  13.) 

Proceedings — How  Begun. 

The  appHcation  to  the  Commission  is  made 
by  petition  of  the  complainant.     (Sec.  13.) 

Contents  of  Petition. 

The  petition  shall  briefly  state  the  facts,  and 
be  delivered  to  the  Commission.      (Sec.  13.) 

Answer  of  Carrier. 

A  statement  of  the  charges  thus  made  shall 
be  forwarded  by  the  Commission  to  such  carrier. 
There  is  no  time  designated  in  the  Act  within 
which  this  must  be  done,  but  the  use  of  the 
word  ''whereupon"  indicates  that  it  shall  be 
delivered  to  the  common  carrier  immediately. 
(Sec.  13.) 

After  the  petition  shall  have  been  forwarded 
by  the  Commission  to  the  carrier,  such  carrier 
shall  be  called  upon  ''to  satisfy  the  complaint  or 
answer  the  same  in  writing  within  a  reasonable 
time,  to  be  specified  by  the  Commission."   (Sec. 

13.) 


76  The  Inter-State  Commerce  Act. 

Reparation  or  Satisfaction  by   Carrier. 

If  such  common  carrier,  within  the  time  speci- 
fied, shall  make  reparation  for  the  injury  alleged 
to  have  been  done,  said  carrier  shall  be  relieved 
of  liability  to  the  complainant  only  for  the 
particular  violation  of  law  thus  complained  of 
(Sec.  13.) 

Trial  or  Investigation^  by  Comm^ission. 

If  such  a  carrier  shall  not  satisfy  the  complaint 
within  the  time  specified,  or  there  shall  appear  to 
be  any  reasonable  ground  for  investigating  said, 
complaint y  it  shall  be  the  duty  of  the  Commis- 
sion to  investigate  the  matters  complained  of  in 

SUCH    MANNER  AND  BY  SUCH  MEANS  AS  IT  SHALL. 
DEEM  PROPER.       (Sec.    1 3.) 

When   Commissioners  Shall  Not  Dismiss  Com- 
plaint, 

No  complaint  shall  at  any  tiTne  be  dismissed 
because  of  the  absence  of  direct  damage  to  the 
complainant,     (Sec.  13.) 

Form  of  Report  of  Commission. 

That  whenever  an  investigation  shall  be  made 
by  said  Commission,  it  shall  be  its  duty  to  make 


The  Inter-State  Commerce  Act.  yy 

a  report  in  writing  in  respect  thereto,  which 
shall  include  :     (Sec.  14.) 

(a)  Findings  of  fact  upon  which  the  conclu- 
sions of  the  Commission  are  based.     (Sec.  14.) 

(J))  Together  with  its  recommendation  as  to 
what  reparation,  if  any,  should  be  made  by  the 
common  carrier,  to  any  party  or  parties  who 
may  be  found  to  have  been  injured  ;  (Sec.  14.) 

(^)  And  stick  findings  so  made  shall  thereafter, 
in  all  judicial  proceedings,  be  deemed  prima  facie 
evidejice  as  to  each  and  every  fact foiaid.   (Sec  14.) 

Recordi7tg  Reports  of  Investigation. 

All  reports  of  investigations  made  by  the 
Commission  shall  be  entered  of  record,  and  a 
copy  thereof  shall  be  furnished  to  the  party  who 
may  have  complained,  and  to  any  common  car- 
rier that  may  have  been  complained  of.  (Sec. 
14.) 

Decision  of  Cominission  a?id  Proceedings  There - 

under. 

That  if  in  any  case  in  which  an  investigation 
shall  be  made  by  said  Commission  it  shall  be 
made  to  appear  to  the  satisfaction  of  the  Com- 
mission, either  by  the  testimony  of  witnesses  or 
other  evidence,  (i)  tJiat any  tJiijig  Jias  been  done  or 


78  The  Inter-State  Comme^^ce  Act, 

omitted  to  be  done  in  violatio7t  of  the  provisions  of 
this  Act,  or  of  any  law  cognizable  by  said  Commis- 
sion, by  any  common  carrier,  or  (2)  that  any 
injury  or  damage  has  been  sustained  by  the 
party  or  parties  complaining,  or  (3)  by  other 
parties  aggrieved  in  consequence  of  any  such 
violation,  it  shall  be  the  duty  of  the  Commission  : 

(a)  To  forthwith  cause  a  copy  of  its  report 
in  respect  thereto  to  be  delivered  to  such  com- 
mon carrier.     (Sec.  15.) 

(f)  Together  with  a  notice  to  said  common 
carrier  to  cease  and  desist  from  such  violation,  or  to 
make  reparatio7t  for  the  injury  so  found  to  have 
been  done,  or  both,  within  a  reasonable  time, 
to  be  specified  by  the  Commission.     (Sec.  15.) 

(c)  And  if,  within  the  time  specified,  it  shall 
be  made  to  appear  to  the  Commission  that  such 
common  carrier  has  ceased  fro7n  such  violation 
of  law,  and  has  made  reparatio7z  for  the  injury 
found  to  have  been  done,  in  compliance  with 
the  report  and  notice  of  the  Commission,  or  to 
the  satisfaction  of  the  party  complaining,  a 
statement  to  that  effect  shall  be  entered  of 
record  by  the  Commission,  and  the  said  com- 
mon carrier  shall  thereupon  be  relieved  from 
further  liability  or  penalty  for  such  particular 
violation  of  law.     (Sec.  15.) 


The  Inter-Statc  Commerce  Act.  79 

Faihcre  of  Coni77t07i  Carrier  to  Obey  yudgnient 
of  Comm.issio7i, 

First :  That  whenever  any  common  carrier, 
as  defined  in  and  subject  to  the  provisions  of 
this  Act,  shall  violate  or  refuse  or  neglect  to  obey 
any  lawful  07^der  or  requirement  of  the  Com- 
mission in  this  Act  named,  it  shall  be  the  duty 
of  the  Commission,  and  lawful  for  any  company 
or  perso7i  interested  in  such  order  or  require- 
ment, to  apply,  in  a  summary  way,  \^y  petition, 
to  the  Circuit  Court  of  the  United  States  sit- 
ting in  equity  in  the  judicial  district  in  which 
the  common  carrier  complained  of  has  its pri^i- 
cipal  office,  or  in  which  the  violation  or  disobedi- 
ence of  such  order  or  requireme7it  shall  happe7i, 
alleging  such  violation  or  disobedience,  as  the 
case  may  be.      (Sec.  16.) 

Second  :  The  said  court  shall  have  power  to 
hear  a7id  determine  the  matter  : 

[a)  On  such  short  notice  to  the  common  car- 
rier complained  of  as  the  court  shall  deem 
reasonable  ; 

(f))  And  such  notice  may  be  served  on  such 
common  carrier,  his  or  its  officers,  agents,  or 
servants,  in  such  manner  as  the  court  shall 
direct.      (Sec.  16.) 

{c)   Said  court  shall  proceed  to  hear  and  dc- 


8o  The  hiter-State  Com77terce  Act. 

termine  the  matter  speedily  as  a  court  of  equity, 
and  without  the  formal  pleadings  and  p7'oceedings 
applicable  to  ordinary  sitits  in  equity,  but  in  such 
manner  as  to  do  justice  in  the  premises  ;  and 
to  this  end  such  court  shall  have  power,  if  it 
think  fit  : 

(^)  To  direct  and  prosecute,  in  such  mode 
and  by  such  persons  as  it  may  appoint,  all 
such  enquiries  as  the  court  may  think  needful 
to  enable  it  to  form  a  just  judgment  in  the 
matter  of  such  petition  ;  and 

(e)  On  such  hearing,  the  report  of  said  Com- 
mission shall  be  prima  facie  evidence  of  the 
matters  therein  stated.     (Sec.    i6.) 

(/)  And  if  it  be  made  to  appear  to  such 
court,  on  such  hearing  or  on  report  of  any 
such  person  or  persons,  that  the  lawful  order 
or  requirement  of  said  Commission  drawn  in 
question  has  been  violated  or  disobeyed,  it 
shall  be  lawful  for  such  court  to  issue  a  writ  of 
injunction  or  other p7^oper process,  mandatory  or 
otherwise,  to  restrain  such  common  carrier  from 
further  continuing  such  violation  or  disobedi- 
ence of  such  order  or  requirement  of  said  Com- 
mission, and  enjoining  obedience  to  the  same. 
(Sec.  1 6.) 

(^g )  And  in  case  of  any  disobedience  of  any 


The  Inter-State  Commerce  Act.  8i 

such  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise,  it  shall  be  lawful  for 
such  court  to  issue  writs  of  attachment,  or  any 
other  process  of  said  court  incident  or  applica- 
ble to  writs  of  injunction  or  other  proper  pro- 
cess, mandatory  or  otherwise,  against  such 
common  carrier,  and,  if  a  corporation,  against 
one  or  more  of  the  directors,  officers,  or  agents 
of  the  same,  or  against  any  owner,  lessee,  trus- 
tee, receiver,  or  other  person  failing  to  obey 
such  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise.      (Sec.  i6.) 

(//)  And  said  court  may,  if  it  shall  think  fit, 
make  an  order  directing  such  common  carrier 
or  other  person  so  disobeying  such  writ  of  in- 
junction or  other  proper  process,  mandatory  or 
otherwise,  to  pay  such  sum  of  money  not  ex- 
ceeding for  each  carrier  or  person  in  default 
the  sum  of  five  hundred  dollars  for  every  day 
after  a  day  to  be  named  in  the  order  that 
such  carrier  or  other  person  shall  fail  to  obey 
such  injunction  or  other  proper  process,  man- 
datory or  otherwise  ;  and  such  moneys  shall 
be  payable  as  the  court  shall  direct,  either  to 
the  party  complaining,  or  into  court  to  abide 
the  ultimate  decision  of  the  court,  or  into  the 
treasury  ;  and    payment  thereof    may,  without 


7B1 


82  The  hiter-State  CoTninerce  Act. 

prejudice  to  any  other  mode  of  recovering  the 
same,  be  enforced  by  attachment  or  order  in 
the  nature  of  a  writ  of  execution,  in  Hke  man- 
ner as  if  the  same  had  been  recovered  by  a 
final  degree  in  personam  in  such  court.   (Sec.  1 6.) 

Appeal. 

When  the  subject  in  dispute  shall  be  of  the 
value  of  two  thousand  dollars  or  more,  either 
party  to  such  proceeding  before  said  court  may 
appeal  to  the  Supreme  Court  of  the  United 
States,  under  the  same  regulations  now  pro- 
vided by  law  in  respect  of  security  for  such  ap- 
peal ;  but  such  appeal  shall  not  operate  to  stay 
or  supersede  the  order  of  the  court  or  the  exe- 
cution of  any  writ  or  process  thereon  ;  and  such 
court  may,  in  every  such  matter,  order  the  pay- 
ment of  such  costs  and  counsel  fees  as  shall  be 
deemed  reasonable.     (Sec.  i6.) 

Petition  to  Circuit   Cotcrt — by  Whom  Presented. 

First  :  Whenever  any  such  petition  shall  be 
filed  or  presented  by  the  Commission,  it  shall  be 
the  duty  of  the  District  Attorney^  under  the 
directio7i  of  the  Attor7iey-  General  of  the  United 
States,  to /r^sf^r^//^  the  same.     (Sec.  i6.) 

Second  :  And  the  costs  and  expenses  of  such 


The  Intei'-State  Com^nerce  Act,  83 

prosecution  shall  be  paid  out  of  the  appropria- 
tion for  the  expenses  of  the  courts  of  the 
United  States.     (Sec.  16.) 

Third  :  For  the  purposes  of  this  Act,  ex- 
cepting its  penal  provisions,  the  Circuit  Courts 
of  the  United  States  shall  be  deemed  to  be 
always  in  session.      (Sec.  16.) 

Comments    np07i   the    Sections    Creating    Inter - 
State   Comm,erce   Commission. 

An  analysis  of  the  sections,  which  we  have 
given  in  this  chapter,  relating  to  the  creation 
and  powers  of  the  Inter-State  Commerce  Com- 
mission, shows  that  Congress  has  attempted, 
under  its  general  right  to  ''  regulate  com- 
merce," to  form  this  Commission  into  a  tribu- 
nal that  is  unique  and  extraordinary  both  in 
law  and  business.  A  study  of  the  powers  of 
this  Commission  shows  that  Congress  has 
clothed  it  with  more  important  and  extensive 
judicial  attributes  than  have  ever  been  con- 
ferred upon  any  tribunal  created  under  the  laws 
of  the  Federal  Government. 

The  Commission  becomes,  under  the  Act, 
not  only  a  suitor  or  party,  but  it  is  a  judge  in 
its  own  causes. 

It  not  only  possesses  all  the  powers  of  a  petit 


84  The  I}itcr-State  Coin77ierce  Act. 

jury,  but  it  has  conferred  upon  it  all  the  inquisa- 
torial  attributes  of  a  grand  jury. 

First :  The  Commission  has  not  only  the 
power  to  investigate  charges  against  railroads 
or  common  carriers  made  by  any  person,  firm, 
corporation,  or  association,  or  body  politic,  or 
municipal  organization,  whether  such  person, 
firm,  corporation,  association,  or  manufacturing 
society,  or  body  politic,  or  municipal  organiza- 
tion has  any  Z7ttercst  in  the  subject  or  not ;  but  it 
may  investigate  any  complaint  forwarded  by  a 
Railroad  Commissioner  or  Railroad  Commis- 
sion of  any  State  or  territory. 

The  fundamental  principle  upon  which  courts 
act  is,  that  no  person  can  invoke  their  aid  or 
use  their  processes  unless  he  has  some  personal 
interest  in  the  subject-matter  involved.  That 
principle  is  entirely  set  aside  by  this  law,  and 
the  Commission  is  authorized  to  begin  investi- 
gations at  the  instance  of  anybody  who  chooses 
to  inaugurate  them ;  and  it  is,  moreover,  en- 
joined to  dismiss  no  complaint  ''  because  of  the 
absence  of  direct  damage  to  the  complainant." 

But  more  than  this,  the  Commission  has  the 
power  to  set  its  own  machinery  in  motion  ex 
mero  motu,  and  it  is  given  the  authority  to  in- 
stitute any  enquiry  on  its  own  motion,  in  the 


The  Inte7^-Statc  Commerce  Act.  85 

same  manner,  and  to  the  same  effect  as  though 
complaint  had  been  made.     (Sec.  13.) 

Second :  The  powers  conferred  upon  the 
Commission,  in  respect  to  the  method  of  inves- 
tigating charges,  are  also  extraordinary  and 
singular. 

If  it  shall  appear  to  the  Commission,  that 
there  is  reasonable  ground  for  investigation  In 
any  case,  the  Commission,  under  the  13th  sec- 
tion of  the  Act,  is  not  only  authorized,  but  it  is 
its  duty  to  investigate  ''  the  matters  complained 
of  in  such  manner  a?id  by  such  means  as  it  shall 
deem  proper!' 

Coupling  this  unlimited  authority,  with  the 
power  which  is  contained  In  the  subsequent  sec- 
tions of  the  Act,  allowing  the  Commission  to 
enquire  into  the  management  and  business  of 
all  common  carriers  ;  to  obtain  from  such  com- 
mon carrier  full  and  complete  general  informa- 
tion necessary  to  enable  the  Commission  to 
perform  the  duties  and  carry  out  the  business 
for  which  it  was  created,  and  to  compel  the  at- 
tendance of  witnesses  and  the  production  of 
books  and  papers  before  it  without  stint  ;  the 
power  of  one  or  more  Commissioners  to  prose- 
cute any  enquiry  necessary  to  its  duties  In  any 
part  of  the   United  States  into  any  matter  or 


86  The  hiter-State  Com^nerce  Act. 

question  of  fact  pertaining  to  the  business  of 
any  common  carrier  subject  to  the  provisions  of 
the  Act,  together  with  its  right  to  compel  the 
companies  to  make  annual  reports ; — considering 
all  these  things  together, — it  is  impossible  to 
conceive  of  any  branch  or  element  of  the  busi- 
ness of  common  carriers,  that  this  Commission 
may  not  enquire  into,  interfere  with,  and  super- 
vise. The  Commission  is  practically  clothed 
with  the  powers  of  conducting  and  controlling 
the  business  of  all  the  inter-State  common  car- 
riers in  the  United  States,  and  any  statement 
short  of  this  fails  to  convey  an  adequate  idea  of 
the  authority  which  this  extraordinary  tribunal 
possesses. 

Third  :  It  is  true  that  the  Commission  is 
not  authorized  by  the  Act  to  enforce  its  deci- 
sions, judgments,  or  decrees,  but  it  has  ample 
power,  for  that  purpose,  to  invoke  the  aid  of 
any  Circuit  Court  of  the  United  States  sittii^g 
in  equity  in  the  judicial  district  in  which  the 
common  carrier  complained  of  has  its  principal 
office,  or  in  which  the  violation  or  disobedience 
of  such  order  or  requirement  shall  happen,  and 
the  Circuit  Court  is  empowered  to  hear  and  de- 
termine the  matter  on  such  notice  to  the  com- 
mon carrier  complained   of  as  the  court  shall 


TJic  Intcr-State  Coninie7^ce  Act.  '^'j 

deem  reasonable,  and  such  notice  may  be  served 
upon  the  common  carrier,  his  or  its  officers, 
agent,  or  servants  in  such  manner  as  the  court 
shall  direct.     (Sec.  i6.) 

If  this  legislation  is  valid,  it  creates  a  remark- 
able enlargement  of  the  powers  of  the  Circitit 
Court  of  the  United  States,  because,  under  the 
629th  section  of  the  Revised  Statutes,  which  is 
not  repealed  by  the  Inter-State  Commerce  Act, 
it  is  provided  that  *'no  civil  suit  shall  be 
brought  before  either  of  said  courts,  against 
any  person,  by  any  original  process  or  proceed- 
ing in  any  other  district  than  that  whereof  he 
is  an  inhabitant,  or  in  which  he  shall  be  found 
at  the  time  of  serving  such  process  or  com- 
mencing such  proceeding."  But  if  this  Act  is 
constitutional,  power  is  conferred  upon  any 
Circuit  Court  to  entertain  a  suit,  of  an  original 
character,  in  equity,  although  the  defendants 
are  neither  inhabitants  of,  nor  found  within  the 
limits  of  the  jurisdiction  of  said  Circuit  Court : 
and  a  Circuit  Court,  sitting  in  a  district  for 
New  York,  is  empowered  to  bring  within  its 
jurisdiction  a  common  carrier  or  person  resid- 
ing in  Florida,  or  Dakota,  or  California,  by 
having  a  notice  served  on  such  carrier  person- 
ally, or  by  mail  or  otherwise,  as  the  court  may 


88  The  I  liter-State  Co7ninerce  Act, 

direct.  (Sec.  i6.)  Moreover,  by  the  same 
section  of  the  Revised  Statutes  of  the  United 
States,  the  jurisdiction  of  the  Circuit  Court  is. 
limited  to  cases  where  the  matter  in  dispute 
exceeds  the  sum  of  five  hundred  dollars. 

•When  we  come  to  examine  the  method  of 
proceeding  in  the  Circuit  Court,  as  provided 
for  by  Section  i6,  of  this  Act,  it  will  be  found 
still  more  anomalous,  because  the  Circuit  Court 
is  directed  to  proceed  to  hear  and  determine 
the  matter  speedily  as  a  court  of  equity,  and 
without  formal  pleadings  and  proceedings  ap- 
plicable to  ordinary  suits  in  equity,  but  in 
such  manner  as  to  do  justice  in  the  premises. 
(Sec.  1 6.) 

No  provision  is  made  for  the  defendant  to 
answer  the  petition,  but  that  right  may  be 
inferred,  perhaps,  from  the  general  language 
of  the  section. 

The  Circuit  Court  is  also  given  the  power 
''  if  it  think  fit,  to  direct  and  prosecute  in  such 
mode,  and  by  such  persons  as  it  may  appoint,, 
all  such  enquiries  as  the  court  may  think  need- 
ful to  enable  it  to  form  a  just  judgment  in  the 
matter  of  such  petition. '     (Sec.  i6.) 

Exactly  what  this  language  means  is  difiicult 
to  infer,  and   it  is  still   more  difficult  to   infer 


The  Inter-State  ConiTnerce  Act,  89 

what  the  powers  would  be  of  the  persons  ap- 
pointed by  the  Circuit  Court. 

There  is,  however,  a  studious  neglect  in  the 
law  to  set  forth  the  steps  or  defences  which  the 
common  carriers  may  interpose  to  the  petition 
and  judgment  prayed  for  ;  but,  on  the  other 
hand,  it  is  declared  that  in  all  judicial  proceed- 
ing's in  the  Circuit  Court  the  findinofs  of  facts 
are  to  ''be  d^^vn^d  prima  facte  evidence  as  to 
each  and  every  fact  found"  by  the  Commission 
(Sec.  14),  and  on  a  hearing  in  the  Circuit 
Court,  provided  for  under  Section  16,  ''  the  re- 
port of  said  commission  shall  be  prima  facie 
evidence  of  the  matters  therein  stated." 

The  Act  is  also  deficient  in  not  providing  for 
the  power  of  adjournments,  and  the  right  to  ex- 
amine absent  witnesses,  or  witnesses  de  beiie 
esse ;  but,  without  undertaking  to  specifically 
enumerate  them,  it  is  sufficient  for  the  purposes 
of  this  work  to  state  that  many  of  the  attributes 
of  ordinary  common-law  actions,  and  suits  in 
equity,  are  left  to  inference  ;  and  if  they  are 
exercised  by  the  Commissioners  at  all,  must  be 
regarded  as  conferred  upon  them  by  the 
general  language  of  the  Act. 

There  is  no  limit  to  the  time  within  which 
proceedings  may  be  begun  against  the  common 


90  The  Intcr-State  CoTumerce  Act, 

carriers  under  this  Act,  and  a  complaint  may 
be  instituted  whenever  the  Commission,  or 
any  person,  or  firm,  or  corporation,  or  body 
poHtic  sees  fit  to  formulate  it,  no  matter  what 
period  of  time  may  have  intervened  between 
the  alleged  infraction  and  the  commencement 
of  the  proceedings. 

Finally,  it  is  difficult  to  decide  whether  the 
Circuit  Court  acts  in  the  premises  as  a  court  of 
appeal,  or  whether  the  proceedings  in  that 
tribunal  are  to  be  regarded  as  begun  de  novOy 
and  of  an  oriorinal  character. 

If  the  proceedings  in  the  Circuit  Court  are 
regarded  as  of  an  appellate  character,  then  the 
Act  makes  no  provision  whatever  for  an  appeal 
on  the  part  of  the  common  carrier  from  the  de- 
crees, or  judgments,  or  orders  of  the  Commis- 
sion, and  the  only  method  open  to  the  common 
carrier  of  bringing  the  matter  before  the  Cir- 
cuit Court  is  to  resist  the  acts  of  the  Com- 
mission, to  place  itself  in  contempt,  and 
thus  force  the  Commission  to  invoke  the  aid 
of  the  Circuit  Court.  But  suppose  the  Circuit 
Court  does  not  agree  with  the  conclusions,  or 
judgments,  or  orders  of  the  Commission,  it  has 
apparently  no  power  to  modify  or  alter  such 
decree  or  order,    and  no  power  to   formulate 


The  Inter-State  Commerce  Act.  91 

a  new  judgment  or  decree — if  the  facts  war- 
rant it. 

These,  and  many  other  practical  difficulties, 
stand  in  the  way  of  an  enforcement  of  the  law 
through  the  aid  of  the  Circuit  Court. 

Fourth:  It  only  remains  to  suggest  the  vari- 
ous constitutional  propositions  which  arise  from 
a  consideration  of  the  language  and  results  and 
consequences  of  the  Inter-State  Commerce  Act. 

(a)  The  first  and  main  question  is :  Has 
Congress  the  right  to  pass  this  law  ?  Do  the 
fixing  of  the  rates,  fares,  and  charges  which 
common  carriers  may  receive  for  the  trans- 
portation of  passengers  or  property,  and  the 
appointment  of  this  Commission,  with  the 
powers  conferred  upon  it,  as  contained  in  the 
Act,  constitute  a  regulation  of  commerce  ? 
Does  regulation  mean  control  of  commerce? 
Does  it  mean  the  absolute  and  unlimited  power 
on  the  part  of  Congress  to  do  any  act  with  or 
concerning  the  commerce  of  the  country  that 
to  it  seems  proper?  Is  there  no  limit  placed 
upon  the  power  of  Congress  in  this  respect  ? 
Is  Congress  the  sole  judge  as  to  what  facts 
constitute  a  regulation  of  commerce?  Has 
Congress  power  to  regulate  any  private  com- 
mercial   business   conducted    between    two    or 


92  The  Tnter-State  Commerce  Act, 

more  States,  in  the  manner  in  which  it  has 
attempted  to  legislate  about  common  carriers  ? 
And  does  the  fact  that  such  carriers  are  quasi 
public  officials  create  any  distinction  as  against 
such  carriers  ? 

If  it  can  be  demonstrated  to  the  Federal 
courts  that  the  effect  of  the  legislation  in  ques- 
tion is  hurtful  to  the  people  of  the  country ; 
that  it  is  aimed  at  the  subversion  or  destruction 
of  commerce,  can  the  Act  be  declared  unconsti- 
tutional ? 

These  are  the  interesting  questions  which 
surround  this  branch  of  the  subject,  and  must 
be  answered  in  order  to  sustain  this  piece  of 
legislation.  On  the  other  hand,  we  have  the 
utterances  of  the  Supreme  Court  of  the  United 
States  in  the  Wabash  Railway  Company  case, 
and  in  the  decisions  there  alluded  to  by  Mr. 
Justice  Miller,  in  which  it  is  generally  stated 
and  held  that  Congress  possesses  the  power  to 
legislate  upon  the  subject  of  inter-State  com- 
merce. There  is  nothing,  however,  in  that 
opinion  which  upholds  the  right  of  Congress 
to  delegate  its  power  to  a  Commission,  and  this, 
as  we  have  said  in  the  beginning  of  this  treatise, 
is  an  entirely  new  question  for  the  courts  to 
determine.     (ii8  U.  S.,  557.) 


The  l7itc7^-State  Cof)i77ierce  Act.  93 

{6)  Assuming,  however,  that  Congress  may 
itself  exercise  powers  similar  to  those  created  by 
the  Inter-State  Commerce  Act,  another  grave 
question  is,  whether  that  body  can  delegate  its 
powers  to  a  tribunal  such  as  is  created  by  this 
Act.  Has  Cono^ress  the  ri^ht  to  divest  itself 
of  the  power  which  the  Constitution  has  placed 
in  its  hands,  and  to  entrust  the  regulation  of 
commerce  to  a  Commission  ?  It  will  be  seen 
that  Congress,  by  this  Act,  does  not  undertake 
specifically  to  fix  the  rates  or  charges  of  com- 
mon carriers,  or  to  regulate  the  method  or 
system  by  which  they  shall  conduct  their  busi- 
ness. All  of  these  things  are  practically  left 
in  the  hands  of  the  Commission,  and  it  lies  with 
that  body,  exclusively,  to  say  what  shall  and 
what  shall  not  constitute  an  infraction  of  the 
law. 

Specific  rules  for  the  government  of  the 
business  and  conduct  of  carriers  are  not  laid 
down  by  the  Act,  but  it  lies  with  the  Commis- 
sion to  declare  what  the  law  shall  be  in  any 
given  case.  The  power  of  the  Commission  is 
arbitrary,  unlimited,  and  unchecked  ;  and  while 
it  cannot  be  assumed  that  it  will  be  used  detri- 
mentally to  the  interests  of  the  public,  or  of 
the  common  carriers,  it  is  doubtful  whether  the 


94  T^f^^  Inter-State  Co77zmerce  Act, 

people  of  the  United  States,  In  adopting  the 
Constitution,  ever  intended  that  such  an  un- 
bounded supervision  over  the  commercial  inter- 
ests of  the  country  should  ever  be  placed  in 
the  hands  of  a  tribunal  such  as  the  Inter-State 
Commerce  Commission. 

An  application  of  these  suggestions  to  the 
various  provisions  of  this  Act,  will  be  sufficient 
to  show  that  Congress  has  practically  dele- 
gated its  whole  power  in  the  premises  to  the 
Commission. 

While  Congress  has  the  right,  under  the 
Constitution  of  the  United  States,  to  ''  consti- 
tute tribunals  inferior  to  the  Supreme  Court," 
the  jurisdiction  of  those  tribunals  must  be  con- 
fined to  such  subjects  and  matters  of  jurisdic- 
tion as  are  specified  in  the  Constitution.  The 
people  of  the  United  States  have  defined 
the  judicial  power  of  the  government,  and 
under  Section  2  of  Article  III.  of  the  Constitu- 
tion it  is  declared  that  : 

^'  I.  The  judicial  power  shall  extend  to  all 
cases  in  law  and  equity,  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under 
their  authority  ;  to  all  cases  affecting  ambassa- 
dors, or  other  public  ministers  and  consuls  ;  to 


The  Inter-State  ConiTnerce  Act.  95 

all  cases  of  admiralty  and  maritime  jurisdiction  ; 
to  controversies  to  which  the  United  States 
shall  be  a  party  ;  to  controversies  between  two 
or  more  States  ;  between  a  State  and  citizens 
of  another  State ;  between  citizens  of  different 
States ;  between  citizens  of  the  same  State, 
claiming  lands  under  grants  of  different  States  ; 
and  between  a  State,  or  the  citizens  thereof,  and 
foreign  states,  citizens,  or  subjects. 

'*  2.  In  all  cases  affecting  ambassadors,  or 
other  public  ministers  and  consuls,  and  those 
in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all 
the  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under 
such   regulations,  as  the  Congress  shall  make." 

These  suggestions  are  thrown  out  upon  a 
possible  contention  that  the  Inter-State  Com- 
merce Commission  is  a  judicial  body,  and 
within  the  authority  of  Congress  to  create 
under  its  power  to  establish  inferior  courts. 

(f)  The  next  proposition  is  whether  some  of 
the  provisions  of  the  Inter-State  Commerce 
Act  do  not  conflict  with  the  Seventh  Amend- 
ment to  the  Constitution  of  the  United  States, 
which  provides  that :  "  In  suits  at  common  law, 


96  The  hiter-State  Commerce  Act. 

where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jttry  shall  be 
preserved,  and  no  fact  tried  by  a  jitry  shall  be 
othei'wise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  the 
commo7i  law!' 

It  Is  undoubtedly  true  that  many  of  the  con- 
troversies arising  between  a  shipper  and  a 
common  carrier,  which  are  to  be  decided  by 
the  Inter-State  Commerce  Commission,  were, 
before  the  passage  of  that  Act,  the  subject 
of  common-law  proceeding,  and  of  investiga- 
tion by  a  petit  jury.  For  Instance,  actions 
against  a  common  carrier  for  violation  of  con- 
tract, or  for  breach  of  duty.  In  the  trans- 
portation of  passengers  or  property,  were,  be- 
fore the  Inter-State  Commerce  Act,  the  sub- 
jects of  common-law  actions,  In  which  juries 
were  regularly  empanelled.  All  of  these 
matters  are  now  cognizable  by  the  Commis- 
sion, at  the  Instance,  not  only  of  persons  who 
are  actually  aggrieved,  but  of  any  person,  firm, 
corporation,  or  association,  or  any  mercantile, 
agricultural,  or  manufacturing  society,  or  any 
body  politic  or  municipal  organization,  that 
chooses  to  take  the  initiative — whether  ag- 
grieved or  not.      (Sec.  13) 


The  Inter-State  Commerce  Act.  97 

No  provision  is  made  in  the  Act  for  trial  by- 
jury  in  any  case,  and  this  right,  instead  of 
being  preserved,  as  demanded  by  the  Constitu- 
tion, seems  to  be  utterly  destroyed  and  set  at 
naught,  by  vesting  jurisdiction  in  the  Com- 
mission. 

id)  Upon  the  question  of  costs  the  Act  is 
entirely  one-sided.  By  the  eighth  section  the 
common  carrier  is  made  liable  to  the  person 
injured  for  the  full  amount  of  damages  sus- 
tained, ''together  with  a  reasonable  counsel  or 
attorney  s  fee,  to  be  fixed  by  the  coicrt  in  every 
case  of  recovery^  which  attorney  s  fee  shall  be  taxed 
and  collected  as  part  of  the  costs  of  the  case!'  It  is 
thus  made  the  duty  of  the  court  to  award  an 
attorney's  fee  in  every  case  in  which  damages 
are  recovered,  no  matter  how  trivial  the  con- 
troversy may  be.  And  there  is  no  limit  what- 
ever to  the  amount  which  the  court  may  grant. 
Each  court  is  the  sole  judge  of  what  is 
'*  reasonable,"  and  there  is  no  appeal  from  its 
decision. 

On  the  other  hand,  there  Is  no  provision 
made  for  the  payment  of  costs  or  attorney's 
fees  to  the  common  carrier  in  case  it  is  success- 
ful. No  matter  how  groundless  the  complaint ; 
no    matter    how   utterly   devoid  of    merit    the 


98  The  Inter-State  Commerce  Act, 

action  or  suit  may  be,  the  common  carrier  is 
awarded  no  costs  of  any  kind. 

Whether  this  inequaHty  infringes  the  Con- 
stitutional prerogatives  of  the  common  carriers 
is  another  of  the  questions  which  the  courts 
must  decide. 

{e)  The  next  question  that  will  arise  in  con- 
siderinof  the  effect  of  the  Inter-State  Commerce 
Act  is,  whether  it  does  not  conflict  with  para- 
graph 5  of  Section  9  of  Article  I.  of  the  Consti- 
tution of  the  United  States,  which  provides  that : 
"  No  preference  shall  be  given  by  any  regula- 
tion of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another." 

While  the  Act  in  question  does  not,  in  express 
term^Sy  give  any  preference  to  the  ports  of  one 
State  over  those  of  another,  it  would  be  suffi- 
cient, so  far  as  the  objects  of  this  provision  of 
the  Constitution  is  concerned,  if  it  could  be 
demonstrated  that  the  effect  of  the  legislative 
measure  would  accomplish  the  result  pro- 
hibited by  the  Constitution. 

We  do  not  intend  to  examine  the  question 
of  fact  raised  by  persons  interested  in  this  Act, 
whether  its  effect  will  be  to  create  a  preference 
in  favor  of  some  ports  over  those  of  others,  but 
it  is  sufficient  for  our  purposes  to  refer  to  the  sec- 


The  Intcr-State  Coirmicrcc  Act. 


99 


tion  of  the  Constitution  which  may  cover  such 
an  argument  if  it  should  be  made. 

(/)  Finally,  the  question  will  arise  whether 
the  effect  and  consequence  of  the  Inter-State 
Commerce  Act  is  to  violate  the  Fifth  Amend- 
ment to  the  Constitution,  which  provides,  hiter 
alia,  that  no  person  shall  '*  be  deprived  of  life,, 
liberty,  or  property,  without  due  process  of  law, 
nor  sYidiW  private  property  be  taken  for  public  iise 
withoitt  jtcst  compensation!'  "^ 

Without  venturing  into  a  detailed  discus- 
sion upon  these  subjects,  we  have  endeav- 
ored to  impartially  present  the  salient  points 
which  arise  from  a  consideration  of  this  im- 
portant Act.  It  is  the  first  attempt  on  the 
part  of  Congress  to  concentrate  into  the  hands 
of  a  Commission  powers  that  are  at  once  judi- 
cial, commercial,  and  inquisitorial,  and  the  de- 
cision of  the  Supreme  Court  of  the  United 
States  upon  this  important  subject  will  be 
awaited  with  the  most  intense  anxiety  and 
interest  by  the  people  of  the  United  States. 

*  See  as  to  abrogation  of  contracts,  ante  pp.  27,  2S. 


CHAPTER  VIII. 

SALARY  OF  COMMISSIONERS,  PRINCIPAL  OFFICE 
AND  REPORTS  OF  COMMISSION,  AND  MISCEL- 
LANEOUS   PROVISIONS. 

Salary  of  Commissioners. 

EACH  Commissioner  shall  receive  an  an- 
nual salary  of  $7,500,  payable  in  the 
same  manner  as  the  salaries  of  judges  of  the 
courts  of  the  United  States.     (Sec.  18.) 

Secretary  of  Commission. 

The  Commission  shall  appoint  a  secretary, 
who  shall  receive  an  annual  salary  of  $3,500, 
payable  in  like  manner.     (Sec.  18.) 

Other  Employees. 

The  Commission  shall  have  authority  to 
employ  and  fix  the  compensation  of  such 
Other  employees  as  it  may  find  necessary  to 
the  proper  performance  of  its  duties,  subject 
to  the  approval  of  the  Secretary  of  the  In- 
terior. 


100 


The  Intei^-Statc  Covnnerce  Act.         loi 

Offices  of  Conimissio7U 

The  Commission  shall  be  furnished  by  the 
Secretary  of  the  Interior  with  suitable  offices 
and  all  necessary  office  supplies. 

Fees  of  Witnesses. 

Witnesses  summoned  before  the  Commis- 
sion shall  be  paid  the  same  fees  and  mileage 
that  are  paid  witnesses  in  the  courts  of  the 
United  States.      (Sec.  i8.) 

Expenses  of  Cormitzssioii. 

All  of  the  expenses  of  the  Commission,  in- 
cluding all  necessary  expenses  for  transporta- 
tion incurred  by  the  Commissioners,  or  by 
their  employees  under  their  orders,  in  making 
any  investigation  in  any  other  places  than  in 
the  city  of  Washington,  shall  be  allowed  and 
paid,  on  the  presentation  of  itemized  vouchers 
therefor  approved  by  the  chairman  of  the 
Commission  and  the  Secretary  of  the  Interior. 
(Sec.  18.) 

Principal  Office  of  Covunissiou. 

The  principal  office  of  the  Commission  shall 
be  in  the  city  of  Washington,  where  its  gen- 


I02         The  Inter-State  Co77tinerce  Act. 

eral  sessions  shall  be  held  ;  but  whenever  the 
convenience  of  the  public  or  of  the  parties 
may  be  promoted,  or  delay  or  expense  pre- 
vented thereby,  the  Commission  may  hold 
special  sessions  in  any  part  of  the  United 
States.  It  may,  by  one  or  more  of  the  Com- 
missioners, prosecute  any  enquiry  necessary  to 
its  duties,  in  any  part  of  the  United  States, 
into  any  matter  or  question  of  fact  pertaining 
to  the  business  of  any  common  carrier  subject 
to  the  provisions  of  this  Act.      (Sec.  19.) 

Reports  of  Commission  10  Secretary  of  Interior, 

The  Commission  shall,  on  or  before  the 
first  of  December  in  each  year,  make  a  report 
to  the  Secretary  of  the  Interior,  which  shall  be 
by  him  transmitted  to  Congress,  and  copies  of 
which  shall  be  distributed  as  are  the  other  re- 
ports issued  from  the  Interior  Department. 
This  report  shall  contain  such  information  and 
data  collected  by  the  Commission  as  may  be 
considered  of  value  in  the  determination  of 
questions  connected  with  the  regulation  of 
commerce,  together  with  such  recommenda- 
tions as  to  additional  legislation  relating 
thereto  as  the  Commission  may  deem  neces- 
sary.     (Sec.  21.) 


The  Intcr-Statc  Coninierce  Act.         103 

Appropriations. 

That  the  sum  of  $100,000  is  hereby  appro- 
priated for  the  use  and  purposes  of  this  Act 
for  the  fiscal  year  ending  June  30,  1888,  and 
the  intervening  time  anterior  thereto.      (Sec. 

23-) 

W/iefi  Act  Shall  Take  Effect. 

That  the  provisions  of  Sections  1 1  and  18  of 
this  Act,  relating  to  the  appointment  and 
organization  of  the  Commission  herein  pro- 
vided  for,  shall  take  effect  Immediately,  and 
the  remaining  provisions  of  this  Act  shall  take 
effect  sixty  days  after  its  passage.     (Sec.  24.) 

The  sixty  days  expire  on  the  5th  day  of 
April,  1887. 


APPENDIX. 


AN   ACT    TO    REGULATE    COMMERCE. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  i7i  Congress  asse?nbiedj 
That  the  provisions  of  this  act  shall  apply  to  any  coitimon 
carrier  or  carriers  engaged  in  the  transportatio7i  of  passen- 
gers or  property  wholly  by  railroad^  or  partly  by  railroad 
and  partly  by  water  when  both  are  used,  under  a  co??imon 
control,  7nanage7ne?it,  or  arrangement,  for  a  conti7iuous 
carriage  or  shipment,  from  one  State  or  Territory  of 
the  United  States,  or  the  District  of  Columbia,  to  any 
other  State  or  Territory  of  the  United  States,  or  the  Dis- 
trict of  Columbia,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the 
United  States  through  a  foreign  country  to  any  other 
place  in  the  United  States,  and  also  to  the  transportation 
in  like  manner  of  property  shipped  from  any  place  in  the 
United  States  to  a  foreign  country  and  carried  from  such 
place  to  a  port  of  transshipment,  or  shipped  from  a  for- 
eign country  to  any  place  in  the  United  States  and  car- 
ried to  such  place  from  a  port  of  entry  either  in  the 
United  States  or  an  adjacent  foreign  country  :  Provided, 
however,  That  the  provisions  of  this  act  shall  not  apply 
to  the  transportation  of  passengers  or  property,  or  to  the 

105 


io6         The  Liter-State  ComTuerce  Act, 

receiving,  delivering,  storage,  or  handling  of  property, 
wholly  within  one  State,  and  not  shipped  to  or  from  a 
foreign  country  from  or  to  any  State  or  Territory  as 
aforesaid. 

The  ter77i  "  raih'oad"  as  used  in  this  act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with 
any  railroad,  and  also  all  the  road  in  use  by  any  corpora- 
tion operating  a  railroad,  whether  owned  or  operated 
under  a  contract,  agreement,  or  lease  ;  and  the  term 
"  transportation  "  shall  include  all  instrumentalities  of  ship- 
ment or  carriage. 

All  charges  made  for  any  service  rendered  or  to  be  ren- 
dered in  the  transportation  of  passengers  or  property  as 
aforesaid,  or  in  connection  therewith,  or  for  the  receiv- 
ing, delivering,  storage,  or  handling  of  such  property, 
shall  be  reasonable  and  just ;  and  every  unjust  and  un- 
reasonable charge  for  such  service  is  prohibited  and 
declared  to  be  unlawful. 

Sec.  2.  That  if  any  conwioji  carrier  subject  to  the  pro- 
visions of  this  act  shall,  directly  or  indirectly,  by  any 
special  rate,  rebate,  drawback,  or  other  device,  charge^ 
demand,  collect,  or  receive  from  atiy  person  or  persons  a 
greater  or  less  compensation  for  any  sei^vice  rendered,  or  to 
be  rendered,  in  the  transportation  of  passengers  or  prop- 
erty, subject  to  the  provisions  of  this  act,  than  it  charges, 
demands,  collects,  or  receives  from  any  other  person  or 
persons  y"<?r  doing  for  him  or  them  a  like  a7id  contempora- 
neous service  in  the  transportation  of  a  like  kind  of  traffic 
under  substantially  similar  circu7?tsta?ices  and  conditions, 
such  common  carrier  shall  be  deemed  guilty  of  unjust 
discrimination,  which  is  hereby  prohibited  and  declared 
to  be  unlawful. 


The  Intcr-State  Commerce  Act.         107 

Sec.  3.  That  it  shall  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  act  to  make  or  give 
any  undue  or  unreasonable  preference  or  advantage  to 
any  particular  person,  company,  firm,  corporation,  or 
locality,  or  any  particular  description  of  traffic,  in  any 
respect  whatsoever,  or  to  subject  any  particular  person, 
company,  firm,  corporation,  or  locality,  or  any  particular 
description  of  traffic,  to  any  undue  or  unreasonable  preju- 
dice or  disadvantage  in  any  respect  whatsoever. 

Every  common  carrier  subject  to  the  provisions  of  this 
act  shall,  according  to  their  respective  powers,  afford  all 
reasonable,  proper,  and  equal  facilities  for  the  inter- 
change of  traffic  between  their  respective  lines,  and  for 
the  receiving,  forwarding,  and  delivering  of  passengers  and 
property  to  and  from  their  several  lines  and  those  con- 
necting therewith,  and  shall  not  discrimhiate  in  their  rates 
and  charges  between  such  connecting  lines  ;  but  this  shall 
not  be  construed  as  requiring  any  such  common  carrier 
to  give  the  use  of  its  tracks  or  terminal  facilities  to  an- 
other carrier  engaged  in  like  business. 

Sec.  4.  That  it  shall  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  act  to  charge  or 
receive  any  greater  compensation  /;/  the  aggregate  for  the 
transportation  of  passengers  or  of  like  kind  of  property^  un- 
der substantially  similar  circiwistances  and  conditions,  for 
a  shorter  than  for  a  longer  distance  over  the  same  line,  in 
the  same  direction,  the  shorter  being  included  within  the 
longer  distance  ;  but  this  shall  not  be  construed  as  au- 
thorizing any  common  carrier  within  the  terms  of  this 
act  to  charge  and  receive  as  great  compensation  for  a 
shorter  as  for  a  longer  distance  :  Provided,  howrt'cr.  That 
upon  application  to  the  Commission  appointed  under  the 


io8         The  Inter-State  Com7nerce  Act. 

provisions  of  this  act,  such  coitwion  carrier  jfiay,  in  special 
caseSf  after  investigatio7i  by  the  Co7nmission^  be  authorized 
to  charge  less  for  longer  than  for  shorter  distances  for 
the  transportation  of  passengers  or  property  ;  and  the 
Co7nmissio7i  may  from  time  to  time  prescribe  the  extent  to 
which  such  designated  common  carrier  may  be  relieved 
from  the  operation  of  this  sectio?t  of  this  act. 

Sec.  5.  That  it  shall  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  act  to  enter  into  any 
contract,  agreement,  or  combination  with  any  other  com- 
mon carrier  or  carriers  for  the  pooling  of  freights  of  dif- 
ferent and  competing  railroads,  or  to  divide  between' 
them  the  aggregate  or  net  proceeds  of  the  earnings  of 
such  railroads,  or  any  portion  thereof  ;  and  in  any  case 
of  an  agreement  for  the  pooling  of  freights  as  aforesaid, 
each  day  of  its  continuance  shall  be  deemed  a  separate 
offence. 

Sec.  6.  That  every  common  carrier  subject  to  the  pro- 
visions of  this  act  shall  print  and  keep  for  public  inspec- 
tion schedules  showijig  the  rates  and  fares  and  charges  yi7r 
the  transportation  of  passengers  and  property  which  any 
such  common  carrier  has  established  and  which  are  m. 
force  at  the  time  upon  its  railroad,  as  defined  by  the 
first  section  of  this  act.  The  schedules  printed  as  afore- 
said by  any  such  common  carrier  shall  plainly  state  the 
places  upo7i  its  railroad  between  which  property  and  pas- 
sengers will  be  carried,  and  shall  contain  the  classifi- 
cation of  freight  in  force  upon  such  railroad,  and  shall 
also  state  separately  the  terminal  charges  and  any  rules  or 
regulations  which  in  any  wise  change,  affect,  or  determine 
any  part  or  the  aggregate  of  such  aforesaid  rates  and 
fares   and   charges.       Such    schedules    shall    be   plainly 


I        The  Liter-State  Commerce  Act.         109 

printed  in  large  type,  of  at  least  the  size  of  ordinary 
pica,  and  copies  for  the  use  of  the  public  shall  be  kept  m 
every  depot  or  station  upon  any  such  railroad,  in  such 
places  and  in  such  form  that  they  can  be  conveniently 

inspected. 

Any  common  carrier  subject  to  the  provisions  of  this 
act  receiving  freight  in   the  United   States  to    be    car- 
ried  through    a   foreign   country   to    any   place   in   the 
United  States  shall  also  in  like  manner  print  and  keep 
for  public  inspection,  at  every  depot  where  such  freight 
is  received  for  shipment,  schedules  showing  the  through 
rates  established  and  charged  by  such  common  carrier  to 
all  pints  in  the  United  States  beyond  the  foreign  country 
to  which  it  accepts  freight  for  shipment  ;  and  any  freight 
shipped  from  the  United  States  through  a  foreign  coun- 
try into  the  United  States,  the  through   rate   on  which 
shall  not  have  been  made  public  as  required  by  this  act, 
shall,  before  it  is  admitted  into  the  United  States  from 
said  'foreign  country,  be  subject  to  customs  duties   as  if 
said  freight  were  of  foreign  production  ;  and  any  law  in 
conflict  with  this  section  is  hereby  repealed. 

No  advance  shall  be  made  in  the  rates,  fares,  and  charges 
which  have  been  established  and  published  as  aforesaid 
by  any  common  carrier  in  compliance  with  the  require- 
ments of  this  section,  except  after  ten  days'  public  notice, 
which  shall  plainly  state  the  changes  proposed  to  be  made 
in  the  schedule  then  in  force,  and  the  time  when  the  in- 
creased rates,  fares,  or  charges  will  go  into  effect  ;  and 
the  proposed  changes  shall  be  shown  by  printing  new 
schedules,  or  shall  be  plainly  indicated  upon  the  sched- 
ules in  force  at  the  time  and  kept  for  public  inspection. 
deductions  in  such  published  rates,  fares,  or  charges  may 


no        The  Intcr-State  Commerce  Act. 

be  made  without  previous  public  notice  ;  but  whenever 
any  such  reduction  is  made,  notice  of  the  same  shall  im- 
mediately be  publicly  posted  and  the  changes  made  shall 
immediately  be  made  public  by  printing  new  schedules, 
or  shall  immediately '  be  plainly  indicated  upon  the 
schedules  at  the  time  in  force  and  kept  for  public 
inspection. 

And  when  any  such  common  carrier  shall  have  estab- 
lished and  published  its  rates,  fares,  and  charges  in  com- 
pliance with  the  provisions  of  this  section,  it  shall  be 
unlawful  for  such  common  carrier  to  charge,  demand, 
collect,  or  receive  from  any  person  or  persons  a  greater 
or  less  compensation  for  the  transportation  of  passengers 
or  property,  or  for  any  services  in  connection  therewith, 
than  is  specified  in  such  published  schedule  of  rates, 
fares,  and  charges  as  may  at  the  time  be  in  force. 

Every  common  carrier  subject  to  the  provisions  of  this 
act  shall  file  with  the  Commission  hereinafter  provided  for 
copies  of  its  schedules  of  rates,  fares,  and  charges  which 
have  been  established  and  published  in  compliance  with 
the  requirements  of  this  section,  and  shall  promptly 
notify  said  Commission  of  all  changes  made  in  the  same. 
Every  such  common  carrier  shall  also  file  with  said  Com- 
mission copies  of  all  contracts,  agreements,  or  arrange- 
ments with  other  commo7i  carriers  in  relation  to  any  traffic 
affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party.  And  in  cases  where  passengers  and  freight  pass 
over  continuous  lines  or  routes  operated  by  more  than 
one  common  carrier,  and  the  several  common  carriers 
operating  such  lines  or  routes  establish  joint  tariffs  of 
rates,  or  fares,  or  charges  for  such  continuous  lines  or 
routes,  copies  of  suchyt?//^/  tariffs  shall   also,  in  like  man- 


The  hiter-State  Covniterce  Act.         1 1 1 

ner,  be  filed  with  said  Commission.  Such  joint  rates, 
fares,  and  charges  on  such  continuous  lines  so  filed  as 
aforesaid  shall  be  made  public  by  such  common  carriers 
when  directed  by  said  Commission,  in  so  far  as  may, 
in  the  judgment  of  the  Commission,  be  deemed  practi- 
cable ;  and  said  Commission  shall  from  time  to  time  pre- 
scribe the  measure  of  publicity  which  shall  be  given  to 
such  rates,  fares,  and  charges,  or  to  such  part  of  them  as 
it  may  deem  it  practicable  for  such  common  carriers  to 
publish,  and  the  places  in  which  they  shall  be  published  ; 
but  no  common  carrier  party  to  any  such  joint  tariff 
shall  be  liable  for  the  failure  of  any  other  common  carrier 
party  thereto  to  observe  and  adhere  to  the  rates,  fares,  or 
charges  thus  made  and  published. 

If  any  such  common  carrier  shall  neglect  or  refuse  to 
file  or  publish  its  schedules  or  tariffs  of  rates,  fares,  and 
charges  as  provided  in  this  section,  or  any  part  of  the 
same,  such  common  carrier  shall,  in  addition  to  other 
penalties  herein  prescribed,  be  subject  to  a  writ  of  man- 
damus, to  be  issued  by  any  circuit  court  of  the  United 
States  in  the  judicial  district  wherein  the  principal  office 
of  said  common  carrier  is  situated  or  wherein  such 
offence  may  be  committed,  and  if  such  common  carrier 
be  a  foreign  corporation,  in  the  judicial  circuit  wherein 
such  common  carrier  accepts  traffic  and  has  an  agent  to 
perform  such  service,  to  compel  compliance  with  the 
aforesaid  provisions  of  this  section  ;  and  such  writ  shall 
issue  in  the  name  of  the  people  of  the  United  States,  at 
the  relation  of  the  Commissioners  appointed  under  the 
provisions  of  this  act  ;  and  failure  to  comply  with  its  re- 
quirements shall  be  punishable  as  and  for  a  contempt  ; 
and  the  said  Commissioners,  as  complainants,  may  also 


1 1 2  The  hiter-State  Commerce  Act. 

apply,  in  any  such  circuit  court  of  the  United  States,  for 
a  writ  of  injunction  against  such  common  carrier,  to  re- 
strain such  common  carrier  from  receiving  or  transport- 
ing property  among  the  several  States  and  Territories  of 
the  United  States,  or  between  the  United  States  and 
adjacent  foreign  countries,  or  between  ports  of  trans- 
shipment and  of  entry  and  the  several  States  and  Terri- 
tories of  the  United  States,  as  mentioned  in  the  first 
section  of  this  act,  until  such  common  carrier  shall  have 
complied  with  the  aforesaid  provisions  of  this  section  of 
this  act. 

Sec.  7.  That  it  shall  be  unlawful  for  any  common 
carrier  subject  to  the  provisions  of  this  act  to  enter  into 
any  combination,  contract,  or  agreement,  expressed  or 
implied,  to  prevent,  by  change  of  time  schedule,  car- 
riage in  different  cars,  or  by  other  means  or  devices,  the 
carriage  of  freights  from  being  continuous  from  the  place 
of  shipment  to  the  place  of  destination  ;  and  no  break  of 
bulk,  stoppage,  or  interruption  made  by  such  common  car- 
rier shall  prevent  the  carriage  of  freights  from  being  and 
being  treated  as  one  continuous  carriage  from  the  place  of 
shipment  to  the  place  of  destination,  unless  such  break, 
stoppage,  or  interruption  was  made  in  good  faith  for 
some  necessary  purpose,  and  without  any  intent  to  avoid 
or  unnecessarily  interrupt  such  continuous  carriage  or  to 
evade  any  of  the  provisions  of  this  act. 

Sec.  8.  That  in  case  ajiy  conunoii  carrier  subject  to  the 
provisions  of  this  act  shall  do,  cause  to  be  done,  ox  perinit 
tc  be  done  any  act,  matter,  or  thing  in  this  act  prohibited 
or  declared  to  be  unlawful,  or  shall  omit  to  do  any  act, 
matter,  or  thiiig  in  this  act  required  to  be  done,  such  com- 
mon  carrier   shall  be  liable   to    the    person    or   persons 


The  hiter-State  Com7ne7'ce  Act.         113 

injured  thereby  for  the  full  a?nount  of  damages  sustained 
in  consequence  of  any  such  violation  of  the  provisions  of 
this  act,  together  with  a  reasonable  counsel  or  attorney's 
fee^  to  be  fixed  by  the  court  in  every  case  of  recovery, 
which  attorney's  fee  shall  be  taxed  and  collected  as  part 
of  the  costs  in  the  case. 

Sec.  9.  That  a?iy  person  or  persons  claiming  to  be  dam- 
aged hy  any  common  carrier  subject  to  the  provisions  of 
this  act  ffiay  either  tnake  complaint  to  the  Commission  as 
hereinafter  provided  for,  or  may  bring  suit  in  his  or  their 
own  behalf  for  the  recovery  of  the  damages  for  which 
such  common  carrier  may  be  liable  under  the  provisions 
of  this  act,  in  any  district  or  circuit  court  of  the  United 
States  of  competent  jurisdiction  ;  but  such  person  or 
persons  shall  not  have  the  right  to  pursue  both  of  said 
remedies,  and  must  in  each  case  elect  which  one  of  the 
two  methods  of  procedure  herein  provided  for  he  or 
they  will  adopt.  In  any  such  action  brought  for  the 
recovery  of  damages  the  court  before  which  the  same 
shall  be  pending  may  compel  any  director,  ofificer,  I 
receiver,  trustee,  or  agent  of  the  corporation  or  company 
defendant  in  such  suit  to  attend,  appear,  and  testify 
in  such  case,  and  may  compel  the  production  of  the 
books  and  papers  of  such  corporation  or  company  party 
to  any  such  suit ;  the  claim  that  any  such  testimony 
or  evidence  may  tend  to  criminate  the  person  giving 
such  evidence  shall  not  excuse  such  witness  from  testi- 
fying, but  such  evidence  or  testimony  shall  not  be  used 
against  such  person  on  the  trial  of  any  criminal  pro- 
ceeding. 

Sec.  10.  That  any  common  carrier  subject  to  the  pro- 
visions of  this  act,  or,  whenever  such  common  carrier  is  a 


1 14         TJlc  Liter-State  Conimei^ce  Act. 

corporation,  any  director  or  officer  thereof,  or  any  receiver, 
trustee,  lessee,  agent,  or  person  actitig  for  or  employed  by 
such  corporation^  who,  alone  or  with  any  other  cor- 
poration, company,  person,  or  party,  shall  wilfully  do  or 
cause  to  be  done,  or  shall  willingly  suffer  or  permit  to 
be  done,  any  act,  matter,  or  thing  in  this  act  prohibited 
or  declared  to  be  unlawful,  or  who  shall  aid  or  abet 
therein,  or  shall  wilfully  omit  or  fail  to  do  any  act, 
matter,  or  thing  in  this  act  required  to  be  done,  or  shall 
cause  or  willingly  suffer  or  permit  any  act,  matter,  or 
thing*  so  directed  or  required  by  this  act  to  be  done 
not  to  be  so  done,  or  shall  aid  or  abet  any  such  omission 
or  failure,  or  shall  be  guilty  of  any  infraction  of  this  act,  or 
shall  aid  or  abet  therein,  shall  be  deemed  guilty  of  a  mis- 
demeanor^ and  shall,  upon  conviction  thereof  in  any  dis- 
trict court  of  the  United  States  within  the  jurisdiction  of 
which  such  offence  was  committed,  be  subject  to  2,  fine  of 
not  to  exceed  five  thousand  dollars  for  each  offence. 

Sec.  II.  That  a  Commission  is  hereby  created  and 
established  to  be  known  as  the  Inter-State  Commerce 
Commission,  which  shall  be  composed  of  five  Com- 
missioners, who  shall  be  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate.  The 
Commissioners  first  appointed  under  this  act  shall  con- 
tinue in  office  for  the  term  of  two,  three,  four,  five, 
and  six  years,  respectively,  from  the  first  day  of  January, 
anno  Domini  eighteen  hundred  and  eighty-seven,  the 
term  of  each  to  be  designated  by  the  President ;  but 
their  successors  shall  be  appointed  for  terms  of  six  years, 
except  that  any  person  chosen  to  fill  a  vacancy  shall  be 
appointed  only  for  the  unexpired  time  of  the  Com- 
missioner whom  he  shall  succeed.       Any  Commissioner 


The  Intcr-Statc  Conwierce  Act.         115 

may  be  removed  by  the  President  for  inefficiency, 
neglect  of  duty,  or  malfeasance  in  office.  Not  more 
than  three  of  the  Commissioners  shall  be  appointed  from 
the  same  political  party.  No  person  in  the  employ  of  or 
holding  any  official  relation  to  any  common  carrier 
subject  to  the  provisions  of  this  act,  or  owning  stock  or 
bonds  thereof,  or  who  is  in  any  manner  pecuniarily 
interested  therein,  shall  enter  upon  the  duties  of  or  hold 
such  office.  Said  Commissioners  shall  not  engage  in 
any  other  business,  vocation,  or  employment.  No 
vacancy  in  the  Commission  shall  impair  the  right  of  the 
remaining  Commissioners  to  exercise  all  the  powers  of 
the  Commission.  -, 

Sec.  12.  That  the  Commission  hereby  created  shall 
have  authority  to  inquire  into  the  management  of  the 
business  of  all  common  carriers  subject  to  the  provisions 
of  this  act,  and  shall  keep  itself  informed  as  to  the  man- 
ner and  method  in  which  the  same  is  conducted,  and 
shall  have  the  right  to  obtain  from  such  common  carriers 
full  and  complete  information  necessary  to  enable  the 
Commission  to  perform  the  duties  and  carry  out  the 
objects  for  which  it  was  created  ;  and  for  the  purposes 
of  this  act  the  Commission  shall  have  power  to  require 
the  attendance  and  testimony  of  witnesses  and  the  pro- 
duction of  all  books,  papers,  tariffs,  contracts,  agree- 
ments, and  documents  relating  to  any  matter  under 
investigation,  and  to  that  end  may  invoke  the  aid  of  any 
court  of  the  United  States  in  requiring  the  attendance 
and  testimony  of  witnesses  and  the  production  of  books, 
papers,  and  documents  under  the  provisions  of  this 
section. 

And   any  of   the  circuit   courts  of   the    I'nited   States 


1 1 6         The  Inter-State  Co7n77ierce  Act, 

within  the  jurisdiction  of  which  such  inquiry  is  carried 
on  may,  in  case  of  contumacy  or  refusal  to  obey  a  sub- 
poena issued  to  any  common  carrier  subject  to  the  pro- 
visions of  this  act,  or  other  person,  issue  an  order  requir- 
ing such  common  carrier  or  other  person  to  appear  before 
said  Commission  (and  produce  books  and  papers  if  so 
ordered)  and  give  evidence  touching  the  matter  in  ques- 
tion ;  and  any  failure  to  obey  such  order  of  the  court 
may  be  punished  by  such  court  as  a  contempt  thereof. 
The  claim  that  any  such  testimony  or  evidence  may  tend 
to  criminate  the  person  giving  such  evidence  shall  not 
excuse  such  witness  from  testifying ;  but  such  evidence 
or  testimony  shall  not  be  used  against  such  person  on  the 
trial  of  any  criminal  proceeding. 

Sec.  13.  That  any  person^  firm,  corporation,  or  associa- 
tion, or  any  mercantile,  agricultural,  or  manufacturing 
society,  or  any  body  politic  or  municipal  organization 
complai7ii?ig  of  any  thing  done  or  omitted  to  be  done  by 
any  common  carrier  subject  to  the  provisions  of  this  act 
in  contravention  of  the  provisions  thereof,  may  apply  to 
said  Commission  by  petition,  which  shall  briefly  state  the 
facts  ;  whereupon  a  statement  of  the  charges  thus  made 
shall  be  forwarded  by  |he  Commission  to  such  common 
carrier,  who  shall  be  called  upon  to  satisfy  the  complaint 
or  to  answer  the  same  in  writing  within  a  reasonable 
time,  to  be  specified  by  the  Commission.  If  such  common 
carrier,  within  the  time  specified,  shall  make  reparation 
for  the  injury  alleged  to  have  been  done,  said  carrier 
shall  be  relieved  of  liability  to  the  complainant  only  for 
the  particular  violation  of  law  thus  complained  of.  If 
such  carrier  shall  not  satisfy  the  complaint  within  the 
time  specified,  or  there  shall  appear  to  be  any  reasonable 


The  I?ite7^-State  Commerce  Act.         117 

ground  for  investigating  said  complaint,  it  shall  be  the 
duty  of  the  Commission  to  investigate  the  matters  com- 
plained of  in  such  manner  and  by  such  means  as  it  shall 
deem  proper. 

Said  Commission  shall  in  like  manner  investigate  any 
complaint  forwarded  by  the  Railroad  Commissioner  or 
Railroad  Commission  of  any  State  or  Territory,  at  the 
request  of  such  Commissioner  or  Commission,  and  may 
institute  any  inquiry  on  its  own  motion  in  the  same 
manner  and  to  the  same  effect  as  though  complaint  had 
been  made. 

No  complaint  shall  at  any  time  be  dismissed  because  of 
the  absence  of  direct  damage  to  the  complainant. 

Sec.  14.  That  whenever  an  investigation  shall  be  made 
by  said  Commission,  it  shall  be  its  duty  to  make  a  report 
in  writing  in  respect  thereto,  which  shall  include  the 
findings  of  fact  upon  which  the  conclusions  of  the  Com- 
mission are  based,  together  with  its  recommendation  as 
to  what  reparation,  if  any,  should  be  made  by  the  common 
carrier  to  any  party  or  parties  who  may  be  found  to  have 
been  injured  ;  and  such  findings  so  made  shall  thereafter, 
in  all  judicial  proceedings,  be  deemed  prima  facie  evi- 
dence as  to  each  and  every  fact  found. 

All  reports  of  investigations  made  by  the  Commission 
shall  be  entered  of  record,  and  a  copy  thereof  shall  be 
furnished  to  the  party  who  may  have  complained,  and  to 
any  common  carrier  that  may  have  been  complained  of. 

Sec.  15.  That  if  in  any  case  in  which  an  investigation 
shall  be  made  by  said  Commission  it  shall  be  made  to 
appear  to  the  satisfaction  of  the  Commission,  either  by 
the  testimony  of  witnesses  or  other  evidence,  that  any 
thing  has  been  done  or  omitted   to  l)c  done  in  violation 


1 18         The  Inte7'-State  Commerce  Act. 

of  the  provisions  of  this  act,  or  of  any  law  cognizable  by 
said  Commission,  by  any  common  carrier,  or  that  any 
injury  or  damage  has  been  sustained  by  the  party  or 
parties  complaining,  or  by  other  parties  aggrieved  in 
consequence  of  any  such  violation,  it  shall  be  the  duty 
of  the  Commission  to  forthwith  cause  a  copy  of  its  report 
in  respect  thereto  to  be  delivered  to  such  common  car- 
rier, together  with  a  7ioiice  to  said  common  carrier  to  cease 
and  desist  from  such  violation,  or  to  make  reparation  for 
the  injury  so  found  to  have  been  done,  or  both,  within  a 
reasonable  time,  to  be  specified  by  the  Commission  ;  and 
if,  within  the  time  specified,  it  shall  be  made  to  appear 
to  the  Commission  that  such  common  carrier  has  ceased 
from  such  violation  of  law,  and  has  made  reparation  for 
the  injury  found  to  have  been  done,  in  compliance  with 
the  report  and  notice  of  the  Commission,  or  to  the  satis- 
faction of  the  party  complaining,  a  statement  to  that 
effect  shall  be  entered  of  record  by  the  Commission,  and 
the  said  common  carrier  shall  thereupon  be  relieved 
from  further  liability  or  penalty  for  siuh  particular  violation 
of  law. 

Sec.  1 6.  That  whenever  any  common  carrier,  as  defined 
in  and  subject  to  the  provisions  of  this  act,  shall  violate 
or  refuse  or  neglect  to  obey  any  lawful  order  or  require- 
ment of  the  Commission  in  this  act  named,  it  shall  be  the 
duty  of  the  Commissioi;i,  and  lawful  for  any  company  or 
person  interested  in  such  order  or  requirement,  to  apply, 
in  a  summary  way,  by  petition,  to  the  circuit  court  of  the 
United  States  sitting  in  equity  in  the  judicial  district  in 
which  the  common  carrier  complained  of  has  its  principal 
office,  or  in  which  the  violation  or  disobedience  of  such 
order  or  requirement  shall  happen,  alleging  such  violation 


The  Inte7^-State  Coninicrcc  Act.  119 

'Or  disobedience,  as  the  case  may  be  ;  and  the  said  court 
shall  have  power  to  hear  and  determine  the  matter,  on 
such  short  notice  to  the  common  carrier  complained  of 
as  the  court  shall  deem  reasonable  ;  and  such  notice  may 
be  served  on  such  common  carrier,  his  or  its  officers, 
agents,  or  servants,  in  such  manner  as  the  court  shall 
direct  ;  and  said  court  shall  proceed  to  hear  and  de- 
termine the  matter  speedily  as  a  court  of  equity,  and 
without  the  formal  pleadings  and  proceedings  applicable 
to  ordinary  suits  in  equity,  but  in  such  manner  as  to  do 
justice  in  the  premises  ;  and  to  this  end  such  court  shall 
have  power,  if  it  think  fit,  to  direct  and  prosecute,  in 
such  mode  and  by  such  persons  as  it  may  appoint,  all 
such  inquiries  as  the  court  may  think  needful  to  enable 
it  to  form  a  just  judgment  in  the  matter  of  such  petition  ; 
and  on  such  hearing  the  report  of  said  Commission  shall 
be  prima  facie  evidence  of  the  matters  therein  stated  ; 
and  if  it  be  made  to  appear  to  such  court,  on  such  hear- 
ing or  on  report  of  any  such  person  or  persons,  that  the 
lawful  order  or  requirement  of  said  Commission  drawn 
in  question  has  been  violated  or  disobeyed,  it  shall  be 
lawful  for  such  court  to  issue  a  writ  of  injunction  or 
other  proper  process,  mandatory  or  otherwise,  to  restrain 
such  common  carrier  from  further  continuing  such  viola- 
tion or  disobedience  of  such  order  or  requirement  of 
said  Commission,  and  enjoining  obedience  to  the  same  ; 
and  in  case  of  any  disobedience  of  any  such  writ  of  in- 
junction or  other  proper  process,  mandatory  or  other- 
wise, it  shall  be  lawful  for  such  court  to  issue  writs  of 
attachment,  or  any  other  process  of  said  court  incident 
or  applicable  to  writs  of  injunction  or  other  j^roper 
process,  mandatory  or  otherwise,  against  such  common 


I20  The  Iiitcr-Statc  Co77i7nerce  Act. 

carrier,  and  if  a  corporation,  against  one  or  more  of  the 
directors,  officers,  or  agents  of  the  same,  or  against  any 
owner,  lessee,  trustee,  receiver,  or  other  person  failing  to 
obey  such  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise  ;  and  said  court  may,  if  it  shall 
think  fit,  make  an  order  directing  such  common  carrier 
or  other  person  so  disobeying  such  writ  of  injunction  or 
other  proper  process,  mandatory  or  otherwise,  to  pay 
such  sum  of  money  not  exceeding  for  each  carrier  or 
person  in  default  the  sum  oi  jive  hundred  dollars  for  every 
day  after  a  day  to  be  named  in  the  order  that  such  carrier 
or  other  person  shall  fail  to  obey  such  injunction  or  other 
proper  process,  mandatory  or  otherwise;  and  such  moneys 
shall,  be  payable  as  the  court  shall  direct,  either  to  the 
party  complaining,  or  into  court  to  abide  the  ultimate 
decision  of  the  court,  or  into  the  Treasury  ;  and  pay- 
ment thereof  may,  without  prejudice  to  any  other  mode 
of  recovering  the  same,  be  enforced  by  attachment  or 
order  in  the  nature  of  a  writ  of  execution,  in  like  manner 
as  if  the  same  had  been  recovered  by  a  final  decree  in 
personam  in  such  court.  When  the  subject  in  dispute 
shall  be  of  the  value  of  two  thousand  dollars  or  more, 
either  party  to  such  proceeding  before  said  court  may 
appeal  to  the  Supreme  Court  of  the  United  States,  under 
the  same  regulations  now  provided  by  law  in  respect  of 
security  for  such  appeal  ;  but  such  appeal  shall  not 
operate  to  stay  or  supersede  the  order  of  the  court  or 
the  execution  of  any  writ  or  process  thereon  ;  and  such 
court  may,  in  every  such  matter,  order  the  payment  of 
such  costs  and  counsel  fees  as  shall  be  deemed  reason- 
able. Whenever  any  such  petition  shall  be  filed  or  pre- 
sented by  the  Commission  it   shall   be   the   duty  of  the 


The  Inter-State,  Co77imerce  Act,         121 

District  Attorney,  under  the  direction  of  the  Attorney- 
General  of  the  United  States,  to  prosecute  the  same; 
and  the  costs  and  expenses  of  such  prosecution  shall  be 
paid  out  of  the  appropriation  for  the  expenses  of  the 
courts  of  the  United  States.  For  the  purposes  of  this 
act  excepting  its  penal  provisions,  the  circuit  courts 
of  the  United  States   shall  be  deemed  to  be  always  in 

session. 

Sec.  17.    That  the  Commission  may  conduct  its  pro- 
ceedings in  such  manner  as  will  best  conduce  to  the 
proper  despatch  of  business  and  to  the  ends  of  justice. 
A  majority  of  the  Commission   shall  constitute  a  quorum 
for  the  transaction  of  business,  but  no  Commissioner 
shall  participate  in  any  hearing  or  proceeding  in  which 
he  has  any  pecuniary  interest.     Said  Commission  may, 
from  time  to  time,  make  or  amend  such  general  rules  or 
orders  as  may  be  requisite  for  the  order  and  regulation 
of  proceedings  before  it,  including  forms  of  notices  and 
the  service  thereof,  which  shall  conform,  as  nearly  as 
may  be,  to  those  in  use  in  the  courts  of  the  United  States. 
Any  party  may  appear  before  said  Commission  and  be 
heard,  in  person  or  by  attorney.     Every  vote  and  official 
act  of  the  Commission  shall  be  entered  of  record,  and  its 
proceedings  shall  be  public  upon  the  request  of  either 
party  interested.     Said  Commission  shall  have  an  official 
seal,  which  shall  be  judicially  noticed.     Either  of  the 
members  of  the  Commission  may  administer  oaths  and 
affirmations. 

Sec.  18.  That  each  Commissioner  shall  receive  an  an- 
nual salary  of  seven  thousand  five  hundred  dollars,  paya- 
ble in  the  same  manner  as  the  salaries  of  judges  of  the 
courts  of  the  United  States.     The  Commission  shall  ap- 


122  The  hiter-State  Cofitmerce  Act. 

point  a  Secretary,  who  shall  receive  an  annual  salary  of 
three  thousand  five  hundred  dollars,  payable  in  like  man- 
ner. The  Commission  shall  have  authority  to  employ 
and  fix  the  compensation  of  such  other  employes  as  it 
may  find  necessary  to  the  proper  performance  of  its 
duties,  subject  to  the  approval  of  the  Secretary  of  the 
Interior. 

The  Commission  shall  be  furnished  by  the  Secretary 
of  the  Interior  with  suitable  offices  and  all  necessary 
office  supplies.  Witnesses  summoned  before  the  Com- 
mission shall  be  paid  the  same  fees  and  mileage  that  are 
paid  witnesses  in  the  courts  of  the  United  States.  All  of 
the  expenses  of  the  Commission,  including  all  necessary 
expenses  for  transportation  incurred  by  the  Commission- 
ers, or  by  their  employes  under  their  orders,  in  making 
any  investigation  in  any  other  places  than  in  the  city  of 
Washington,  shall  be  allowed  and  paid,  on  the  presenta- 
tion of  itemized  vouchers  therefor  approved  by  the 
Chairman  of  the  Commission  and  the  Secretary  of  the 
Interior. 

Sec.  19.  That  the  principal  office  of  the  Commission 
shall  be  in  the  city  of  Washington,  where  its  general  ses- 
sions shall  be  held  ;  but,  whenever  the  convenience  of 
the  public  or  of  the  parties  may  be  promoted  or  delay  or 
expense  prevented  thereby,  the  Commission  may  hold 
special  sessions  in  any  part  of  the  United  States.  It 
may,  by  one  or  more  of  the  Commissioners,  prosecute 
any  inquiry  necessary  to  its  duties,  in  any  part  of  the 
United  States,  into  any  matter  or  question  of  fact  per- 
taining to  the  business  of  any  common  carrier  subject  to 
the  provisions  of  this  act. 

Sec.  20.   That  the  Commission  is  hereby  authorized  to 


The  lilt cj'-St ate  Coiniiterce  Act.         123 

reqtiire  annual  reports  from  all  common  carriers  subject 
to  the  provisions  of  this  act,  to  fix  the  time  and  prescribe 
the  manner  in  which  such  reports  shall  be  made,  and  to 
require  from  such  carriers  specific  answers  to  all  ques- 
tions upon  which  the  Commission  may  need  information. 
Such  annual  reports  shall  show  in  detail  the  amount  of 
capital  stock  issued,  the  amounts  paid  therefor,  and  the 
manner  of  payment  for  the  same  ;  the  dividends  paid, 
the  surplus  fund,  if  any,  and  the  number  of  stock- 
holders ;  the  funded  and  floating  debts  and  the  interest 
paid  thereon  ;  the  cost  and  value  of  the  carrier's  prop- 
erty, franchises,  and  equipment ;  the  number  of  employes 
and  the  salaries  paid  each  class  ;  the  amounts  expended 
for  improvements  each  year,  how  expended,  and  the 
character  of  such  improvements  ;  the  earnings  and  re- 
ceipts from  each  branch  of  business  and  from  all  sources  ; 
the  operating  and  other  expenses  ;  the  balances  of  profit 
and  loss  ;  and  a  complete  exhibit  of  the  financial  opera- 
tions of  the  carrier  each  year,  including  an  annual" 
balance-sheet.  Such  reports  shall  also  contain  such  in- 
formation in  relation  to  rates  or  regulations  concerning 
fares  or  freights,  or  agreements,  arrangements,  or  con- 
tracts with  other  common  carriers,  as  the  Commission 
may  require  ;  and  the  said  Commission  may,  within  its 
discretion,  for  the  purpose  of  enabling  it  the  better  to 
carry  out  the  purposes  of  this  act,  prescribe  (if  in  the 
opinion  of  the  Commission  it  is  practicable  to  prescribe 
such  uniformity  and  methods  of  keeping  accounts)  a 
period  of  time  within  which  all  common  carriers  subject 
to  the  provisions  of  this  act  shall  have,  as  near  as  may 
be,  a  uniform  system  of  accounts,  and  the  manner  in 
which  such  accounts  shall  be  kept. 


124         The  hiter-State  Commerce  Act. 

Sec.  21,  That  the  Commission  shall,  on  or  before  the 
first  day  of  December  in  each  year,  make  a  report  to  the 
Secretary  of  the  Interior,  which  shall  be  by  him  trans- 
mitted to  Congress,  and  copies  of  which  shall  be  distrib- 
uted as  are  the  other  reports  issued  from  the  Interior 
Department.  This  report  shall  contain  such  information 
and  data  collected  by  the  Commission  as  may  be  consid- 
ered of  value  in  the  determination  of  questions  con- 
nected with  the  regulation  of  commerce,  together  with 
such  recommendations  as  to  additional  legislation  relating 
thereto  as  the  Commission  may  deem  necessary. 

Sec.  2  2.  That  nothing  in  this  act  shall  apply  to  the 
carriage,  storage,  or  handling  of  property  free  or  at  re- 
duced rates  for  the  United  States,  State,  or  municipal 
governments,  or  for  charitable  purposes,  or  to  or  from 
fairs  and  expositions  for  exhibition  thereat,  or  the  issu- 
ance of  mileage,  excursion,  or  commutation  passenger 
tickets  ;  nothing  in  this  act  shall  be  construed  to  prohibit 
any  common  carrier  from  giving  reduced  rates  to  minis- 
ters of  religion  ;  nothing  in  this  act  shall  be  construed  to 
prevent  railroads  from  giving  free  carriage  to  their  own 
officers  and  employes,  or  to  prevent  the  principal  officers 
of  any  railroad  company  or  companies  from  exchanging 
passes  or  tickets  with  other  railroad  companies  for  their 
officers  and  employes  ;  and  nothing  in  this  act  contained 
shall  in  any  way  abridge  or  alter  the  remedies  now  exist- 
ing at  common  law  or  by  statute,  but  the  provisions  of 
this  act  are  in  addition  to  such  remedies  :  Provided^ 
That  no  pending  litigation  shall  in  any  way  be  affected 
by  this  act. 

Sec.  23.  That  the  sum  of  one  hundred  thousand  dol- 
lars is  hereby  appropriated  for  the  use  and  purposes  of 


The  rnte7''State  Covmierce  Act.         i25 

this  act  for  the  fiscal  year  ending  June  thirtieth,  anno 
Domini  eighteen  hundred  and  eighty-eight,  and  the  inter- 
vening: time  anterior  thereto. 

Sec.  24,  That  the  provisions  of  sections  eleven  and 
eighteen  of  this  act,  relating  to  the  appointment  and 
organization  of  the  Commission  herein  provided  for,  shall 
take  effect  immediately,  and  the  remaining  provisions  of 
this  act  shall  take  effect  sixty  days  after  its  passage. 

Approved,  February  4,  1887. 

No.  2473. 

United  States  of  America,  Department 
OF   State. 

To  all  to  whom  these  presents  shall  come,  Greeting  : 

I  certify  that  hereto  annexed  is  a  true  copy  of  an  Act 
of  Congress,  approved  February  4,  1887,  the  original  of 
which  is  on  file  in  this  Department,  entitled  :  An  Act  to 
Regulate  Commerce. 

In  testimony  whereof,  I,  Thomas  F.  Bayard, 

Secretary  of  State  of  the  United  States, 

have   hereunto    subscribed   my   name 

and  caused  the  seal  of  the  Department 

,        o    1   r        ^      of  State  to  be  affixed.     Done  at  the 
\          Seal  of         /  •  1       1  r 

\  United  States.  \     City  of  Washington,   this  8th  day  of 

March,  A.  D.  1887,  and  of  the  Inde- 
pendence of  the  United  States  of 
America,  the  one  hundred  and  eleventh. 

T.  F.  Bayard. 


/r 


^ 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 


^^i^lan^ 


;  '1 


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JAN  ^    1^0)I5CaRC  mi^'^^ 


REC  cite   OCT  1  7  Vii 


MAR  04 1988 


mm;  FEB  g  c  )ogo 


mri  0 1991 


»ISCFEBZ5'91 


LD  21A-50m-12,'60 
(B6221sl0)476B 


General  Library 

University  of  California 

Berkeley 


U.C.  BERKELEY  LIBRARIES 


cQObibsaoi 


